Burns v Pearce - [2009] WADC 150

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BURNS -v- PEARCE [2009] WADC 150

CORAM: KEEN DCJ

HEARD: 10, 11, 12, 13 AUGUST 2009

DELIVERED : 29 SEPTEMBER 2009

FILE NO/S: CIV 2128 of 2005

BETWEEN: ROBERT ANDREW BURNS
Plaintiff
AND
KRISTY MARIE PEARCE
Defendant

Catchwords:

Negligence - Animal on highway - Liability of defendant hitting cow on road for subsequent collision between the plaintiff and the cow

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Action dismissed

Representation:

Counsel:

Plaintiff: Mr B L Nugawela & Mr D Banda
Defendant: Ms B A Mangan

Solicitors:

Plaintiff: Havilah Legal
Defendant: Lavan Legal

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

Alexander v Manley [2004] WASCA 140
Graham v Baker (1961) 106 CLR 340
Henville v Walker (2001) 206 CLR 459
Klimoski v Water Authority of Western Australia (1989) 5 SR(WA) 148
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Naxakis v Western General Hospital (1999) 197 CLR 269
Nepi v Northern Territory of Australia, unreported; SCt of NT; BC9701834; 2 May 1997
Ohlstein v E & T Lloyd [2006] NSWCA 226
R v Whitbread, (1995) 78 A Crim R 452
State of New South Wales v Moss (2000) 54 NSWLR 536

KEEN DCJ: In this matter the plaintiff claims damages for personal injury arising out of an accident sustained by him on 7 August 2003. Both liability and quantum are in issue.

The accident

The accident involves an unusual set of circumstances. On 7 August 2003 at about 5.50 am the plaintiff was driving his Holden Rodeo motor vehicle in a northerly direction on Railway Parade, Muchea. In the statement of claim the road is described as the Muchea South Road. There appears to be no issue that it is one and the same road.
At the material time the defendant was driving a Hyundai Excel sedan motor vehicle on the same road in the same direction and in front of the plaintiff's vehicle.
Photographs of the scene were tendered in evidence as Exhibit 8. Those photographs demonstrate that the road in question was straight and level and divided down its centre by a broken white line. The photographs depict the road as carrying a single line of traffic in each direction. On the left‑hand side of the road there is a solid white line depicting the edge of the road or close to the edge of the road.
At a point along the road the defendant's Excel motor vehicle collided with a cow on the road. The defendant then swerved to the eastern side of the road. According to the plaintiff an unidentified motor vehicle coming in a southerly direction on the road pulled out onto the wrong side of the road to go round the defendant's vehicle. The combination of all these manoeuvres are said to have caused the plaintiff's motor vehicle to collide with the cow. The plaintiff's motor vehicle then left the road and the plaintiff sustained injury.
The statement of claim alleges:
"4.On the material date at about 5.50 am:
4.1the Defendant's motor vehicle was travelling in a northerly direction on Muchea South Road, and collided with a cow ('the cow') causing the Defendant's motor vehicle to swerve to the eastern side of Muchea South Road ('the Defendant's accident');
4.2immediate thereafter the driver of an unidentified motor vehicle drove, managed and controlled that motor vehicle in a manner that caused or materially contributed to the Plaintiff's motor vehicle to collide with the cow ('the Plaintiff's accident').
5.The Plaintiff's accident was caused by the negligence of the Defendant.
PARTICULARS OF NEGLIGENCE OF THE DEFENDANT
5.1Failed to remain in control of the Defendant's vehicle;
5.2Failed to pay due care and attention whilst driving the motor vehicle;
5.3Travelling at a speed that was in all the prevailing circumstances excessive;
5.4Failed to adequately or at all keep any or any proper lookout;
5.5Failed to adequately or at all take appropriate evasive measures to avoid the cow and/or minimise the force of impact between the Defendant's vehicle and the cow;
5.6immediately after the Defendant's accident failed to warn oncoming traffic of the cow's presence on Muchea South Road in circumstances where the Defendant knew or ought to have known that other vehicles may collide with the cow."
By her defence the plaintiff admits that she was the driver of the Hyundai Excel motor car and that on the material date the plaintiff was the driver of the Holden Rodeo motor vehicle and:
"4.In relation to paragraph 4 of the re‑amended statement of claim, the defendant:
4.1admits that:
4.1.1she was travelling in a northerly direction on Muchea South Road at about 5.50 am on the material date,
4.1.2she collided with a cow; and
4.1.3the collision with the cow caused her motor vehicle to swerve to the eastern side of Muchea South Road.
4.2denies:
4.2.1the presence of an unidentified motor vehicle immediately after her collision with the cow and accordingly denies the balance of paragraph 4 of the re‑amended statement of claim.
5.The defendant denies the allegations in paragraph 5 of the re‑amended statement of claim and denies that she was negligent as alleged or at all.
6.Further as to paragraph 5 of the re-amended statement of claim the defendant states further that the plaintiff's accident was caused or contributed to by the plaintiff's own negligence.
PARTICULARS OF PLAINTIFF'S NEGLIGENCE
6.1The plaintiff was familiar with the section of Muchea South Road where the accidents occurred.
6.2At all material times the plaintiff knew or ought to have known that from time to time stock strayed onto the road or could stray onto the road.
6.3The plaintiff saw the defendant's motor vehicle travelling to the eastern side of Muchea South Road.
6.4Prior to the plaintiff's accident the plaintiff did not stop or slow down sufficiently to ascertain the cause of the defendant's motor vehicle travelling to the eastern side of Muchea South Road.
6.5Prior to the plaintiff's accident the plaintiff continued to drive towards the scene of the defendant's accident without stopping or slowing down sufficiently to be prepared to avoid a hazard on the road (or to assist the defendant).
6.6Prior to the plaintiff's accident the plaintiff did not stop or slow down to take account of the possibility that there was an obstacle on the road, such as the cow.
6.7Prior to the plaintiff's accident the plaintiff did not stop or slow down or take any other action to take account of and precautions for the possibility that any other vehicle travelling on the road would take unpredictable evasive or other action to avoid the defendant's motor vehicle and/or the cow.
6.8Prior to the plaintiff's accident the plaintiff was driving at an excessive speed.
6.9If an unidentified driver was involved as alleged (and denied) then the plaintiff failed to give way to the driver of the unidentified motor vehicle.
6.10The plaintiff failed to keep a proper look out.
6.11The plaintiff failed to stop, slow down, swerve or in any other adequate way whatsoever control or manage his vehicle so as to avoid or prevent the plaintiff's accident."

The plaintiff's evidence

The plaintiff's evidence as to the circumstances surrounding the accident was short and can be summarised that he left home on the day in question just after 5.50 am. It was dark. He was on Railway Parade and had another car (the defendant's vehicle) in front of him. He said that he was not gaining on that car nor was it pulling away from him.
He then said that on a straight piece of road the car in front of him veered over to the right-hand side of the road. He said that it crossed the dotted line in the centre of the road and kept on travelling. He said that at this time he was approximately 400 metres behind the vehicle.
He said that he started to slow down by taking his foot off the accelerator. He said:
"I looked at my speedo, saw it had around 103. It goes from 100 and – 105, 110 and it was in the middle of the – between 100 and 105."
He was then asked what he did and he said that when he saw the 103 kilometres per hour on the speedometer he looked up and noticed that a car was coming towards him heading south. He said it moved around the car in front and it came onto his side of the road. It had its headlights on.
He said that he started to slow down more and dropped a gear, that is, from fifth gear to fourth gear. When asked what speed he was then doing he said:
"Dropping it down, I believe I was down – well under 100, down around – even 90 … It pulls up quite well in fourth gear … I believe I was well under 100 at that stage."
He then described the car that was coming towards him moving back over onto the other side of the road, that is to say its correct side. He said:
"As it got up with me, my focus was then taken off that car and it was put directly in front of me when I noticed there was something dark on the road."
When asked if it looked like anything he said:
"No. It was just a – a dark shape basically – in front of me in – in my lane. I had nowhere to go. If I went to my left, I would have ended up in the drain. If I'd gone to the right I would have collided with the car."
His evidence was that he hit a cow in the road, lost control of the vehicle and struck a lamp post.
In cross‑examination the plaintiff was taken to other reports or statements that he had made concerning the circumstances of this accident. The first was a handwritten report under the heading of "East Metropolitan Crash Investigation Section" and dated 18 August 2003 (Exhibit 4). The plaintiff agreed that this was an account that he had given of the accident to a police officer at about that time.
In that report the plaintiff had apparently said that he was about 500 to 1,000 metres from the vehicle in front of him when he saw brake lights and the car going off the road to the right. He said that at that time that was a guess as to the distance. However, in his evidence he explained that later he had attended at the site of the accident and had established the distance by reference to a number of lamp posts by the side of the road and, it appears by process of reconstruction, settled on a distance of about 400 metres.
Also in that statement he referred to another vehicle travelling south towards him which had driven around to the left of the vehicle in front of him and it was after that southbound vehicle had gone passed him that he saw the cow on the road, tried to stop but it was too close and he hit the cow.
Counsel for the defendant put it to the plaintiff that he had not braked. The plaintiff said that he did brake. When questioned further about it he said "I tried to brake and when I – when I saw it I was in the motion of braking".
The plaintiff was also questioned in relation to a claim form that was completed and signed by him. This was a Western QBE document which became Exhibit 5. The plaintiff said that the document was not in his handwriting but acknowledged that it was his signature on the document and it was dated 19 August 2003. The plaintiff said that the handwriting was that of his wife. He dictated the contents of the form to her. The description of the accident in that document was:
"It was dark. Car in front hit cow. Drove on then stopped. I hit cow, lost control of car. Hit lamp post, went through fence, stopped in paddock."
He agreed that in that account of the accident there was no mention of an unidentified vehicle. He also agreed there was no mention of slowing down and changing gears.
The last statement that was put to the plaintiff and which became Exhibit 6 was a statement signed by him on 26 July 2004 in which the plaintiff said that he was travelling at around 103 kilometres per hour. In cross‑examination he agreed that he had been travelling more than that in the lead‑up to the accident.
He agreed that in that statement he had said that the car in front of him collided with a cow and then swerved to the right-hand side of the road. In explaining what he meant by swerved he said "Went over to the right‑hand side of the road". He said it went straight over. He said it kept on driving.
In the statement he then referred to the other vehicle travelling in the opposite (southerly) direction which he described as being "forced to swerve onto my side of the road" to avoid the other vehicle. In his evidence he said that this other vehicle coming in the southbound direction had to swerve around the other car and onto his side of the road and then went back onto his own side of the road.
The plaintiff said that he had dropped down a gear and had his foot resting on the brake ready for anything that possibly could happen. He went on to say that he tried to brake but it all happened quickly and it did no good.
Under cross‑examination the plaintiff agreed that he did not brake when he saw the defendant's vehicle swerve and drive onto the wrong side of the road, nor when he saw the vehicle coming in the opposite direction directly towards him and the only time he braked was when he saw the cow on the road in front of him.

Expert evidence

The plaintiff led evidence in relation to this accident from Dr Stephen Chew and Mr William Apgar, both engineers. It is appropriate for me to briefly review Mr Apgar's evidence first as to some extent it is relied upon by Dr Chew.
Mr Apgar prepared a report of 10 July 2009 which became Exhibit 11.2. That report followed testing by him of a year 2000 Hyundai Excel. He took readings of the headlights' intensity determined for 10, 5 and 3 lux light readings. He then set out his findings in respect of headlight intensity measured from the front of the car on both low beam and high beam in respect of those varying light level luxes. On low beam the highest intensity was found at about 43 metres from the front of the car and the lowest level at about 71 metres. On high beam the highest level was found at 81 metres and the lowest level at 134 metres.
Mr Apgar commented on the table in his report, which set out the findings in respect of headlight intensity, with the following:
"Mr Burns then walked along a line 2 metres to the left of the centre line of the car and I observed his position from the car. He was wearing dark clothing which made him difficult to see. He could be seen at a distance of 70 metres from the front of the car with the headlights on high beam. The headlights were then put on low beam and he could not be readily seen until he was about 30 metres from the front of the car."
The evidence of Dr Chew was directed to stopping and seeing distances. He also then related his findings to the data contained in the report of Mr Apgar.
Before proceeding to consider the evidence of Dr Chew in more detail he noted in cross‑examination that the tables and data in his report applied equally to the plaintiff's Rodeo motor vehicle as to the defendant's Hyundai Excel.
Dr Chew carried out a number of calculations and produced a number of tables. The tables in respect of stopping distance varied depending upon whether one or two seconds' reaction time was entered into the equation and whether the motor vehicle with serviceable brakes had a braking co‑efficient of 0.7 or 0.8. He opined that a motor vehicle with serviceable brakes was likely to be within that range.
By those tables Dr Chew demonstrated that with a one second reaction time and a 0.7 braking co‑efficiency the stopping distance from 110 kilometres per hour would be 98.5 metres.
Again with a one second reaction time but this time with a 0.8 braking co‑efficiency the stopping distance for such speed is reduced to 90 metres.
If the reaction time is taken out to two seconds then with 0.7 braking co‑efficiency the stopping distance is 129.1 metres and at 0.8 braking co‑efficiency, 120.6 metres.
Dr Chew also calculated available reaction times for seeing distances of 50, 60 and 95 metres. The first two sets of calculations were said to reflect the seeing distance on passing lights and the latter on driving lights. I do not propose to detail all of those calculations. It is sufficient to note that with a seeing distance of 50 metres at 110 kilometres per hour the available reaction time is, according to Dr Chew, 1.6 seconds; over 60 metres seeing distance, 2 seconds; and over 95 metres 3.1 seconds.
In his report Dr Chew relied upon the "Handbook of Road Safety Research" (1987) by Geoffrey Grime in relation to seeing distances and from that data inferred that the distance at which a cow could have been visible to a driver was 50 to 60 metres on passing lights and at least 95 metres on driving lights.
I deal with this in more detail later on, but it is to be noted that in a supplementary report Dr Chew took into account the results obtained by Mr Apgar and formed the view that it did not alter the opinions contained in his (Dr Chew's) report. However, in relation to the caveat placed upon his findings by Mr Apgar about the difficulty of seeing the plaintiff Dr Chew merely commented that this was a subjective assessment which can vary between individuals. That comment is equally applicable, in my view, to Dr Chew's findings in his report as to the distance at which a cow might have become visible whether at 50, 60 or 95 metres.

Defendant's evidence

The defendant in her evidence said that she had been working at Tiwest for about a year at the time of the accident and drove the road upon which the accident occurred every day to get to work. She was familiar with the road and she was aware that there were farms around the road and it was a "traditional country road. The defendant confirmed that she had seen cattle in the farms on the side of the road before.
On the day in question she said that she had been driving close to the speed limit of 110 kilometres per hour. She said it was dark.
She said that she saw the figure of a cow in front of her and then "it all seemed to happen a bit in slow motion. The cow was in the left‑hand half of my lane and so the cow impacted with my car. Its head, I believe, hit my windshield and smashed my windshield". She said it struck the passenger side of the front windscreen.
She said that the cow was facing across the road to the east. She thought it was black in colour.
She was asked how far into the road the cow was and she said about a quarter. She said that the cow was about 5 or 10 metres away when she first saw it and she braked and held her steering wheel, bracing herself.
After she had hit the cow she said that her car was pushed across into the opposite lane and kept moving slowly across the road. She feared that she might end up in a ditch on the other side of the road or hit a post but she came to a stop in a lay‑by.
She said that her vehicle was pushed suddenly across the road at an angle forward and across at the same time. She could not say how far it travelled in that way.
She identified the lay‑by which she finished up in as being that shown in photograph number 1 in Exhibit 8.
When she came to a stop she said that she was in shock. She got out of the car. She said that she was sitting in her car for a matter of seconds before she got out, but she was not 100 per cent sure. She said that it was a couple of seconds later that she noticed the plaintiff's car coming. She saw the headlights approaching and they illuminated the cow lying on the road. She then said:
"And then his two left hand-side wheels hit the car and came up, so his car came up on two wheels. When it banged back down onto the road it started swerving for a few times quite violently until it hit the power pole."
She identified that the power pole was about where she was standing and a power pole can be seen in photograph number 1 on Exhibit 8.

She was asked whether or not she recalled seeing any other traffic passing her. She said that she had not, but acknowledged under cross‑examination that there was a possibility that a vehicle had been coming in the opposite direction which she may have missed.
She went to try to assist the plaintiff in his car but as the power lines were down she could not do so. She tried to stop other vehicles but nobody stopped and so she drove to a nearby house to call for help.
The defendant was cross‑examined and confirmed that she was driving on headlights but could not be sure whether they were high beam or low beam. She said her headlights were in good working order. As to whether they were on low beam or high beam she noted that this was a long stretch of road and that if someone was coming from a long way off you would have to dim your lights, but otherwise she would travel on high beam because she preferred to drive that way.
She confirmed that she had been watching the road all the time and did not take her eyes off it.
The defendant's counsel repeated her evidence that the cow was one‑quarter of the way across her lane of travel and was asked her whether she could avoid the collision and she said that she could not and by the time she saw the cow she would have had to have swerved violently to avoid hitting the cow.
She could not recall whether the cow was moving. All she could say was that it turned its head towards her.
After the accident the defendant confirmed that she did not put on her hazard lights. She was questioned about how she arrived in the lay‑by lane and whether she had brought her vehicle into the lay‑by in a controlled fashion. She said that she was pushed to the lay‑by the force of the collision. She had braked before hitting the cow but the brakes had not seized and she did not skid. She did not recall taking her foot off the brake as she was being pushed into the lay‑by, but she retained control of the steering wheel. It was purely accidental that she ended up in the lay‑by.
She described the lay‑by as being perhaps 15 or 20 metres long and she finished up in the lay-by quite close to where she entered it. She did not travel any great distance within the lay‑by.
The defendant assumed that it was the cow that had pushed her car across the road because she had damage down the left‑hand side of her vehicle as well as to the passenger's side of the windscreen where the cow had struck.
The cross‑examination was then directed towards what the defendant might have been able to see. She was asked whether she could have seen the cow a lot further back than just 5 to 10 metres and replied that on high beam she definitely would have.
The defendant was then questioned about her seeing distance on the assumption that her passing lights would illuminate over a distance of 50 metres. She was asked the following:
"If you accept for present purposes that the throw of the low beam on your car was, say, 50 metres – so lights up 50 metres ahead of the direction of travel; do you accept that if you had kept a better lookout, that you would have seen this cow a lot before the 5 to 10 metres that you say was the distance that separated you and the cow by the time you saw it standing one‑quarter of the way in your lane? – Yes, if the cow was on the road, and my lights did shine 50 metres ahead of me, I should have seen it before."

Liability findings of fact

Much of the evidence is not in dispute in this matter and I can accept it. There is no dispute that the plaintiff and the defendant were both proceeding in a northerly direction on the road on the day in question with the defendant in front of the plaintiff.
It is a fact that it was dark. The road is straight and level at the material section and visibility is unimpeded. The road is regulated by a 110 kilometre per hour speed limit. The road passes farms on its west side and cattle graze in the fields on that side as was known to the defendant who had traversed the road regularly for a considerable number of months to and from work. As I have noted she described it as a "traditional country road". The plaintiff also worked at the same place and also traversed the same road and was familiar with the road for the same reasons.
No evidence was led as to the width or the state of the road. As I have noted previously, Exhibit 8 shows the road and I have described elsewhere what those photographs depict.
Both the plaintiff and defendant were travelling at about the same speed, that is, about 110 kilometres per hour – the defendant was not pulling away from the plaintiff and the plaintiff was not gaining on the defendant.
The plaintiff asserts that he was approximately 400 metres behind the defendant's vehicle. I accept that as being the best estimate that can be obtained. Despite the plaintiff's earlier assertion that the defendant was 500 to 1,000 metres in front of him when he saw the defendant's brake lights, that distance, at that upper range, is a very considerable distance to make any such observation especially in the dark. The estimate of 400 metres is, as noted, a reconstruction, albeit in my view a reasonable approach.
There is no dispute that the defendant hit the cow and then the plaintiff hit the same cow some moments later. There is also no real dispute that just prior to hitting the cow the defendant had braked. The defendant says as much and the plaintiff saw the brake lights come on. There is also no dispute that after hitting the cow the defendant's vehicle moved (to use a neutral term) to the right‑hand side of the road.
Having established those facts, it is necessary to make findings of fact in relation to each of the defendant and the plaintiff as to what has led to each collision.

The defendant

I find that the defendant saw the cow on the road very shortly before striking it – she estimates 5 to 10 metres. Such estimates are always difficult especially in circumstances where it is dark. The defendant described the incident as appearing to occur in slow motion. The estimate that she gave to the police some 45 minutes to an hour after the accident was about 5 metres.
Whilst I cannot make any precise finding as to the distance that the cow was from her when she first saw it, the evidence does lead me to find that her car and the cow were in very close proximity when she first saw the cow. I make this finding despite the defendant asserting that she had her headlights on (but not able to say if on high or low beam), was watching the road at all times and did not take her eyes off the road.
I find that the cow was black or very dark in colour. There is no real dispute as to this. I also find that at the time the defendant saw it, it was facing across the road to the east – that is to say to the defendant's right. It was about a quarter onto the road. By that I understand the defendant to mean a quarter onto her lane which is the tenor of her evidence in cross‑examination.
Such a position of the cow is also consistent with where the impact of the cow on the car occurred. The defendant said that the impact was to the passenger's side of the front windshield and then down the left‑hand side of the car. The defendant did not swerve before hitting the cow.
Having regard to the description of the road that I have already given and noting that there are no road measurements in evidence it would seem that (referring to the photographs in Exhibit 8) that the evidence would place the cow about 1 metre into the defendant's lane of travel. I accept the defendant's evidence as to the position of the cow and so find.
There is no evidence as to what the cow was doing or where it was prior to the defendant seeing it.
The defendant has frankly admitted that if the cow was on the road and if her lights did shine 50 metres ahead, she should have seen the cow. That admission, however, must be seen in context. There is no real challenge to the evidence of Mr Apgar that on low beam the headlight intensity would be at its highest at 43 metres from the front of the car but that, in his experiment, the plaintiff dressed in dark clothing, could not readily be seen until he was about 30 metres from the front of the car.
Further the defendant's concession as to what she may have been able to see ahead of her is qualified by the position of the cow – that is, if it was on the road and if her lights did shine 50 metres. As I have noted, there was no evidence as to whether the cow was on the road and at that distance.
Accordingly, my finding can only go so far as that if the defendant was on low beam and if the cow was already on the road the defendant should have seen it at about 30 metres at the most.
Was the defendant on high or low beam? Here the evidence was that the defendant preferred to drive on high beam but the road is long and straight and it is necessary to dim the lights if someone is coming in the opposite direction. In view of the finding that I make later I find it more probable than not that she was at the time on low beam.
I accept and find that the effect of hitting the cow was to push the defendant's motor vehicle across to the right of the road. The defendant did not actively swerve but that was the effect, as noted by the plaintiff, that she swerved to the right. I find that despite that she was able to bring her motor vehicle to a reasonably controlled halt in the lay‑by as she described. There is no evidence to assist me as to the distance that she so travelled.
I also accept her evidence that immediately after the accident she sat in her car for a few moments. She said it was a matter of a few seconds but she was in shock. I also accept her evidence that she then got out of the car and saw the plaintiff's vehicle approaching and strike the cow as she described and then swerved before hitting the pole, again as she described.

The plaintiff

As I have noted the plaintiff was about 400 metres behind the defendant travelling at about 110 kilometres per hour until he observed the brake lights of the defendant's motor vehicle and saw it swerve to the right.
To provide some temporal parameters it is worth noting that at a constant speed of 110 kilometres per hour the plaintiff was approximately 13 seconds behind the defendant if the distance was 400 metres.
I accept the plaintiff's evidence that he took his foot off the accelerator on seeing the defendant's brake lights and her swerving to the right. I also accept his evidence that he looked at his speedometer which then recorded somewhere about 103 kilometres per hour. So much of his evidence is unchallenged.
The plaintiff then said that he saw a car coming towards him on his side of the road it having moved around the car in front of him (presumably the defendant's motor vehicle).
Was there such a motor vehicle? The defendant said that she did not recall seeing it but, as I have noted, in cross‑examination she accepted the possibility that it might have been there.
The plaintiff's primary evidence as to this vehicle is that which he gave at trial. However, he did make mention of this vehicle in his report to police on 18 August 2003, some nine days after the accident (Exhibit 4).
Counsel for the plaintiff accepts that this other vehicle must have regained its correct side of the road before it reached the cow (i.e. the north side of the cow) otherwise it too would have collided with the cow.
I have found that the defendant came to rest in the lay‑by. By that time the southbound lane would have been unrestricted so far as this other vehicle's progress was concerned and there would have been no need for it to pull out onto the north bound lane. Nevertheless before the defendant had made it to the lay‑by she would have been, for part of the time, in and blocking the southbound lane, which could require that other vehicle to move over to the northbound lane. As I have noted there is no evidence as to the distance between the point of collision with the cow by the defendant and where she came to rest.
I am satisfied that this other vehicle was in the vicinity at the time. The real issue is what was it doing and what part did it have to play in what transpired.
I am also satisfied on the plaintiff's evidence that he saw this vehicle and that it had moved into the north bound lane. I am also satisfied that on seeing that the plaintiff took the precautionary step of slowing down by dropping down from fifth to fourth gear which had the effect of bringing his speed down to something under 100 kilometres per hour. I am also satisfied that the plaintiff took no other steps by way of breaking to retard the speed of his motor vehicle.
By the time that this motor vehicle had regained its correct side of the road it no longer posed a threat to the plaintiff. As I have noted, this must have been at some point prior to this other motor vehicle reaching the cow. There is no suggestion of this motor vehicle swerving into its correct lane to avoid the cow or the plaintiff's vehicle in contrast to the plaintiff's statement in Exhibit 6 where he said that the car was "forced to swerve onto my side of the road" to avoid the defendant's vehicle.
It is not possible to make any definitive findings of how far the plaintiff was from the cow and when the other motor vehicle ceased to pose a threat to the plaintiff. The plaintiff suggested that he was close and once the car had regained its correct side his focus was then taken off that car and then he saw something dark on the road. He said that he had nowhere to go – left led to a drain and right, to a collision with the other car. I do not accept the plaintiff's evidence as to the proximity of this vehicle and its part in what then occurred. It is my view and I find that the plaintiff was a good deal further from the cow when the other vehicle regained its position on the southbound lane than his evidence would suggest.
I come to this view from my findings that the plaintiff was about (but at least) 400 metres behind the defendant when she struck the cow; it would necessarily be a very short period of time between her so doing and stopping in the lay‑by; for part of that time she was in the southbound lane causing the other vehicle to go into the north bound lane; this vehicle must have, necessarily, also within that very short period of time and before reaching the cow, regained the southbound lane; the defendant remaining in her car for a couple of seconds and then getting out and seeing the plaintiff's car approaching and having the accident. At this point this other vehicle had probably already passed the defendant as her car was in the lay‑by and there was no reason for it (the other vehicle) to swerve by reason of the defendant's car being in the southbound lane.
I am also fortified in this finding by reason that if the other vehicle and the plaintiff's vehicle were in close proximity one would have expected the plaintiff to have braked particularly as he had seen both the defendant's vehicle "swerve" to the right and the other vehicle "swerve" to its right to avoid the defendant's vehicle. In the plaintiff's closing submissions counsel described the plaintiff's attention as "squarely on avoiding a head‑on collision". If that were the case then one would expect the braking to which I have referred.
Having made that finding I do not accept that this motor vehicle caused the plaintiff to be incommoded so that it had any part to play in the crash that followed.
That being the case I find that, having seen the defendant's motor vehicle brake and move to the right and having seen this other motor vehicle, the plaintiff did no more than to retard his speed as I have described. He then proceeded along the roadway until colliding with the cow as described by the defendant. I find that that collision was at speed. It is impossible to say what that speed was but on the plaintiff's own evidence; he had not braked (or at best was in "the motion of braking"), he had seen the cow in the middle of the road, tried to stop but was too close to it.

Liability – legal principles and findings

In the present case it is necessary to consider first whether the defendant was negligent in colliding with the cow. Subject to subsidiary issues relating to warning the plaintiff of some danger on the road, it seems to me that if there was no negligence on the part of the defendant in striking the cow, then there can be no negligence for what occurred to the plaintiff thereafter.
If by striking the cow the defendant was negligent, the next question is whether that negligence of the defendant was a material cause of the plaintiff’s accident and injuries.
One thing is clear and that is that the defendant, as a motorist, owed a duty of care to all foreseeable users of the road. So much does not require citation of authority.
In the present case the defendant's action was not one which directly impacted upon the plaintiff – as the plaintiff put it, it set off a chain of events.
So was the defendant's act of striking the cow caused by her negligence? In the present case there are some similarities with the facts in Alexander v Manley [2004] WASCA 140.
In that case in the early hours of the morning the respondent was driving a tow truck along Middleton Beach Road, Albany. Earlier that morning the appellant, Alexander, had been out drinking with a Mr Turner. They were walking home.
The respondent's evidence was that as he was driving on Middleton Beach Road he approached Vine Street and his attention was drawn to a person by the side of the road being, as it turned out, Mr Turner. He said this person was moving around like he had been drinking. The respondent started to veer to the centre of the road because he thought that Mr Turner was going to walk out. He looked back to the road and saw something lying in the road. He lifted his foot off the brake and ran over what turned out to be the appellant. The appellant was lying in the road closer to the centre line of the road than to the left‑hand verge.
Evidence in that case was led from Dr Chew about the visibility of a dark object, resembling a body, to the tow truck driver as being between 90 and 160 metres depending on whether the streetlights and headlights on the truck were operating.
The trial Judge in that case found that there was no evidence to justify the conclusion that the respondent was not keeping a proper lookout. He also found that it appeared that the lighting was adequate and the appellant was wearing dark clothing and his presence on the road could hardly have been expected nor easily perceived in the conditions that prevailed. There was no evidence of excessive speed on the part of the respondent nor any failure by him to handle his vehicle in a reasonable manner and in the circumstances the trial Judge was not satisfied that the respondent was negligent as pleaded or at all.
Le Mière J in the Full Court noted that the trial Judge had rejected the submissions that there was no reason why the respondent should not have been able to avoid driving over the appellant. That rejection was made on the basis that it wrongly assumed that the appellant was lying in the road as the respondent approached the junction. The trial Judge found there was no evidence as to when the appellant came to be on the road and thus no basis for concluding that the respondent should have seen him earlier than he did.
Le Mière J further noted there was no evidence as to when the appellant came to be on the road but, as noted above, that the appellant was closer to the centre line of the road than the left‑hand verge. His Honour concluded that it was probable that the appellant was a short distance from Mr Turner when the respondent first spotted Mr Turner and went on to say:
"It is difficult to imagine that the appellant could have moved from the road verge onto the road and fallen or laid down in the position where he was first seen by the respondent without the respondent having seen him. The inference should be drawn that the appellant was on the roadway when the respondent approached the intersection with Vine Street. His Honour erred in fact in not making that finding."

His Honour concluded that the respondent's attention would naturally have been drawn to the figure of Mr Turner standing on the side of the road and added:
"However, that does not extinguish the respondent's duty of care to all users of the road, including the inattentive and those whose faculties were impaired by alcohol. In my view the appeal must succeed. The respondent continued at the same speed and changed the direction of his vehicle whilst taking his eyes off the road for a time of two to three seconds. He thereby breached the duty of care he owed to any other motorist or pedestrian who might be on the road however unexpectedly."
In contrast to the Alexander case there is no evidence in the present case as to when the cow came to be on the road. As I have noted in Alexander, on appeal, an inference was drawn that the appellant was on the roadway when the respondent approached the intersection with Vine Street. In the present case no such inference can be drawn in relation to the cow. Indeed my finding is that the defendant was keeping a look out but despite this saw the cow very shortly before hitting it. Further, unlike in Alexander where the appellant was close to the centre of the road, the cow in the present case was in the first quarter of the defendant's lane.
In Alexander the trial Judge gave little weight to the evidence of Dr Chew as to when and where a dark body on the road would have been visible to the driver noting that Dr Chew had made his observations and measurements on an occasion other than the night of the accident and in circumstances that were different and under different weather conditions. Further, his Honour noted that Dr Chew knew of the existence of the object on the road and was looking out for it. The Full Court did not interfere with this part of the learned trial Judge's reasoning but relied instead upon the inference to which I have already referred.
Counsel for the plaintiff in the present case argues that a cow is a slow moving object and relying on dicta in Ohlstein v E & T Lloyd [2006] NSWCA 226 that I should take judicial notice of that fact and that cows are different to kangaroos springing from verges. Whilst I am content to leap to the latter proposition about the movement of kangaroos, I am not prepared to do so as to cows being slow moving objects. Given a particular set of circumstances a cow might very well make a sudden movement. It is true that the defendant does not allege that here and properly so as the evidence does not go that far as the defendant did not see the cow until the last minute when it did not appear to be moving. The defendant cannot argue that it leapt out in front of her. Neither can she nor anyone else say nor can any inference be drawn as to where the cow was and what it was doing immediately before the defendant saw and hit it.
The plaintiff's argument is one, which when analysed, promotes the proposition that on a country road such as this governed by a 110 kilometre speed limit one should not in the dark be driving at that speed and if required to dim one's lights one should reduce one's speed. I can readily accept that one would reduce speed in adverse conditions such as fog or heavy rain but where the conditions are fine the position may well be otherwise. However, save where one may be dazzled by oncoming lights, to require a driver to slow down to the extent as promoted by the plaintiff whenever it is necessary to dim headlights would require not only a counsel of perfection in a driver but also what may be seen as an unrealistic management of a motor vehicle on the highway.
As I have noted and found, there is no evidence to justify a conclusion that the defendant was not keeping a proper lookout or was otherwise negligent as pleaded in the statement of claim at pars 5.1, 5.2, 5.3, 5.4 or 5.5.
It follows that in my view the defendant was not negligent in hitting the cow.
The next issue that arises is whether the defendant having collided with the cow was negligent in that she failed to warn oncoming traffic as alleged in par 5.6 of the statement of claim.
The plaintiff's proposition is that having collided with the cow, the defendant steered into the lay‑by lane and then failed to put on her hazard lights. In her evidence the defendant agreed that as far as she was aware those lights were working properly.
Given that what the plaintiff is alleging is negligence by omission there is no evidence from the plaintiff as to what he would have done had he seen any hazard warning lights. However, one may infer that had they been deployed by the defendant they would have added to the warnings that had already been seen by the plaintiff; the defendant's brake lights, the defendant swerving to the right, the other vehicle swerving onto the plaintiff's side of the road and its headlights coming towards him. As to what point such additional warning from the hazard warning lights would have occurred in relation to the plaintiff's position on the road is impossible to say given that the earliest one would expect them to be so used was once the defendant had come to a halt.
However, it was not unreasonable for the defendant to alight from her vehicle almost immediately she came to a halt believing as she did that the windscreen was making a cracking noise and she was concerned it might come into the car. It was then that she saw the plaintiff's car approaching and collide with the cow.
Irrespective of any duty which the defendant may have had to try to warn other road users of an obstruction on the road, I am of the view that the defendant acted reasonably, in the agony of the moment, in getting out of her car and was not in breach of any such duty.
If I am wrong in my assessment of the defendant's conduct and she was negligent in striking the cow, the next issue is whether that negligence is causative of the plaintiff's accident and injuries.
The plaintiff submits that the defendant's collision with the cow set in process a chain of events that resulted in the plaintiff's accident and that her negligence materially increased the risk of injury to the plaintiff.
The defendant says that if the defendant was negligent her negligence was not a cause of the accident.
It is now well accepted that matters of causation are essentially a question of fact into which considerations of policy and value judgments necessarily enter; March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 524 per Toohey J. They are matters that are, generally speaking, determined by reference to commonsense and experience. The "but for" test is not a definitive test of causation; see March v Stramare (supra).
It is also well accepted that a defendant is liable in negligence only if the defendant's negligent act or omission caused or materially contributed to the damage the subject of the plaintiff's claim. It need not be the sole cause of the loss. It is sufficient if it is a cause of the loss. In Henville v Walker (2001) 206 CLR 459 at [60] the court said:
"For the purposes of the law of negligence where two or more events combine to bring about the result in question the issue of causation is resolved on the basis that the act is legally causative if it materially contributes to that result."
Further, in March v E & MH Stramare (supra) it was further said by Mason CJ at 509:
"Thus at law a person may be responsible for damage when his or her wrongful conduct is one of a number of conditions sufficient to produce that damage."
In Naxakis v Western General Hospital (1999) 197 CLR 269 at [31] Gaudron J relevantly stated:
"For the purposes of the allocation of legal responsibility, 'if a wrongful act or omission results in an increased risk of injury to the plaintiff and that risk eventuates, the defendant's conduct has materially contributed to the injury that the plaintiff suffers whether or not other factors also contributed to that injury occurring'. The trier of fact … is entitled to conclude that the act or omission caused the injury in question unless the defendant establishes that the conduct has no effect at all or that the risk would have eventuated and resulted in damage in question in any event." (Citations omitted)
I find that the defendant striking the cow so that the cow was no longer standing but laying down in the road (presumably dead or injured) did increase the risk of injury to other road users such as the plaintiff in that the cow became an immobile obstruction on the highway.
Relying upon the dicta of Gaudron J in Naxakis (supra) the question is whether the defendant has established that the conduct of the defendant has had no effect or the risk would have eventuated in any event. In posing this question I do not lose sight of the starting point that it is the plaintiff who bears the legal burden of proving causation on the balance of probability. Where that is established it is the evidentiary burden that shifts to the defendant.
I am satisfied that the collision between the defendant's motor vehicle and the cow did not materially contribute to the plaintiff's accident and injuries.
The plaintiff was 400 metres from the defendant when she hit the cow. Even with the heightened risk to the plaintiff with the cow being prostrate on the road, what caused the plaintiff to collide with the cow was the plaintiff's own negligence. I am not satisfied that the grounds in pars 6.2 and 6.7 of the defence have been made out but I am satisfied as to grounds 6.1, 6.3, 6.4, 6.5, 6.6, 6.8, 6.10 and 6.11.
As to ground 6.9 I have found that the unidentified vehicle was in the vicinity but on my findings there was no cause for the plaintiff to give way to it as alleged.
I find that the cow in its prostrate position on the road was materially no less visible to an approaching driver (the plaintiff) as it was when standing (for the defendant), a proposition acknowledged by counsel for the plaintiff at trial.
The plaintiff had ample time from seeing the defendant's brake lights and the swerving actions of the defendant's motor vehicle and the unidentified vehicle to take some further precautionary action on the basis that he should have been warned that something was amiss in front of him. His mere slowing down as he describes it was clearly insufficient. There is no doubt that the defendant's description of how the plaintiff's motor vehicle hit the cow and what it did thereafter, which I accept, leads to the inference that the plaintiff's motor vehicle was still travelling at some considerable speed when it hit the cow.
The evidence of Dr Chew and Mr Apgar to the extent that it contains calculations applies equally to the plaintiff. The real distinction between the plaintiff and the defendant is that the plaintiff was put on notice that there was something untoward ahead of him and should have taken avoiding action by slowing down so as to be able to stop in time or to swerve.
In my view the actions of the plaintiff have broken the chain of causation. The causal factor was the plaintiff's failure to act on what he had seen occurring in front of him in the ample time that he had; that is, to slow down or stop or having slowed down avoid colliding with the cow by swerving.
In my view the acts of the defendant, despite being an essential condition of the consequence but being no more than an antecedent condition not amounting to a cause (as those expressions are used by Mason CJ in March v Stramare) did not materially contribute to the plaintiff's accident.

Quantum

Notwithstanding my findings on negligence, it is necessary for me to make an assessment of the damages suffered by the plaintiff.

The plaintiff and his employment

The plaintiff was born on 1 September 1964. He is married with three daughters aged 20, 18 and 13.
He completed his education to Year 10 and then worked in various occupations as a general hand before joining Tiwest where he progressed to become a supervisor in the dry mill in 2003.
In his occupation the plaintiff works in 12 hour shifts, four days on and four days off followed by four nights on and four days off.
He described his employment as one where he has seven men working underneath him to supervise. His work involves questions of safety, production and training. It further involves walking the plant, making sure all the paperwork is in order and reporting to management on a number of issues.
In relation to training the plaintiff said that he spent a good deal of time in the field showing new employees the processes. The plaintiff also has to deal with production breakdowns when they occur. He has a hands‑on component in that aspect of the work. He described changing of belts in confined dusty spaces involving squatting and sitting and also bogging out a pump or if the pump breaks down, fixing the pumps in similar circumstances.
As to getting around the plant he described the need to climb steps and stairs. To his office there are some 66 steps. There are 125 to 135 steps in another stairwell and in the centre stairwell 155 steps to the top of the plant. In addition to all of this there is uneven ground at the plant which he has to traverse.
The plaintiff produced as Exhibit 3 a bundle of tax returns and tax assessments for the period 30 June 2002 to 30 June 2008. In that final year he is shown to have earned by way of income from Tiwest the sum of $101,419 gross. He also receives income from a rental property which is not relevant for the purposes of the current proceedings.
The plaintiff also gave evidence that as part of a salary sacrifice arrangement he obtained a Holden Commodore motor vehicle on lease through Orix. The lease amount was $1,324.40 per month which according to a document entitled "Tiwest Novated Lease Pre and After Tax Split" involved a "novated lease pre-tax deduction of $1,015.55". This had the effect of reducing the plaintiff's salary for tax purposes.

The plaintiff's injuries and disabilities

The plaintiff gave evidence that he sustained injury in the accident comprising a cut to his head requiring 13 stitches, a cut to the right eye requiring seven stitches and a fracture to the eye socket, broken teeth which became infected involving root canal treatment and crowns and a fracture to the lower jaw. He also fractured his right wrist and his right knee into which plates and pins were inserted which resulted in him being in a wheelchair for three months.
The plaintiff said he was in hospital for eight days before being discharged and then remained at home until he returned to work in early January 2004.
The plaintiff said that his current condition was that he still has a tingling sensation to the right side of his head when it is touched. As to his right eye he suffers headaches on that side. He said that his teeth were not perfect but they settled after the crown and root canal work. He still has some pain on and off in the teeth and jaw.
As to his right wrist, the plaintiff said that he was right-handed and now has difficulty tightening bolts and replacing belts.
The plaintiff has constant pain in his right leg particularly when it is cold at work. He said that it takes a while to get going and the knee gives way. He said it swells up. He said "I walk into work and limp out".
When he returned to work he was on light duties for about six or seven weeks and then resumed normal duties by the end of January or early February 2004. During the period that he was off work he was paid sick leave which he had accumulated over some 13 years of work. He returned to work on all normal duties.
Prior to the accident the plaintiff said that he played golf, did bike riding, trained with his children at hockey and did a good deal of walking including bushwalking. Now he says that walking hurts his knee particularly on uneven ground. He no longer spends time training with the children and bicycle riding hurts him. He suffers after bushwalking.
The plaintiff said that he takes Panamax for pain and his wife applies emu oil, Tiger balm or Dencorub to his knee. She does this about twice a week for 15 minutes. He said he cannot sleep because of his leg and also his hip plays up.
He described his family relationship before the accident as being happy and communicative with the family doing things together and travelling with the children to sport. He said that he and his wife shared the household duties. He said that his wife drove the Commodore and he had a Land Cruiser to take the children to sports. He said that she does most of the travelling now whereas before the accident it was 50 ‑ 50. Nowadays his wife takes their youngest child to hockey for three or four months in the year in winter and in the summer to swimming twice a week. The plaintiff's wife Anne Marie Burns also gave evidence and confirmed that prior to the accident they would share the responsibilities of taking the children to their sports on a 50 ‑ 50 basis, but immediately after the accident she did most of the driving and still does most of it.
Before the accident he said he spent about six hours per week doing household chores which included the lawns and looking after the animals but also other household chores but since he does less of the chores and his wife helps for about three hours a week. The plaintiff’s wife also said that prior to the accident the plaintiff shared the housework including washing, vacuuming, doing the laundry, mopping, cleaning gutters and mowing the lawns but after the motor vehicle accident he might put a load of washing in and he does the dishes. He still mows the lawns but she assists him with the whipper‑snippering.
After his release from hospital the plaintiff said he basically stayed home and during that period his wife bathed and washed him and dressed him.
Immediately after his discharge from hospital Mrs Burns said that she would set up the bathroom for the plaintiff, assist him with his shower, washing his hair and back and helping him to dry off and to clean up after him. She did all this over a period of some four weeks and it gradually declined nine weeks after the motor vehicle accident. She said that it occurred on a daily basis for about a half an hour a day. Mrs Burns also took the plaintiff to doctors' appointments for 16 weeks. The distance they travelled varied from 30 kilometres to Midland and Joondalup to up to 60 kilometres for trips to Subiaco to see Mr Prosser. She thought on average she drove for about two hours per week.
She described the plaintiff as being easygoing prior to the accident but now quite difficult with a short fuse. She said that recently he had started kayaking.
The plaintiff's pleaded injuries are:
"6.1.1Trauma to the head region;
6.1.2Trauma to the right eye region;
6.1.3Trauma to the right cheekbone;
6.1.4Trauma to the mouth region, including broken teeth, infected gums and fractured jaw;
6.1.5Trauma to the lung, including collapse;
6.1.6Trauma to the right knee;
6.1.7Trauma to the right wrist, involving fracture; and
6.1.8Post-traumatic stress disorder."
In closing, the defendant did not deny the injuries set out at pars 6.1.1 to 6.1.7, but did raise issues as to the post-traumatic stress disorder (PTSD) claimed in par 6.1.8 of the statement of claim to which I will return.
I propose to concentrate on the injury to the plaintiff's knee. This is the most serious of his injuries. Exhibit 14 is a series of medical reports received from Mr Alan Prosser, orthopaedic surgeon, who saw the plaintiff immediately after the accident and continued to treat him and produce reports to 25 June 2009.
In his report of 8 August 2003 he described the plaintiff's injury to his knee as a split depression fracture of the lateral tibial plateau. He said that this required surgery by way of open reduction and internal fixation by the use of plates and screws across the tibial plateau. He also noted that the lateral meniscus had sustained a peripheral detachment in its anterior half, which was repaired with sutures during the procedure.

The subsequent reports from Mr Prosser continued to note the plaintiff's progress and by 29 October 2003 he noted that the plaintiff had been attending physiotherapy and making good progress and was down to using a single walking stick outdoors and walking without aids indoors. He was fully weight bearing. He suggested that the plaintiff should continue with physiotherapy and noted the plaintiff planned to return to work on office duties in mid‑November.
In his report of 21 November 2005 Mr Prosser noted that over the months after surgery the plaintiff had gradually improved function in the knee. He had returned to light duties in January 2004 and wished to return to full duties.
He further noted that by July 2004 the knee had continued to improve slowly and the plaintiff was able to work and be on his feet all day. He had regained normal movements in the knee which felt stable with no swelling.
He further noted that by March 2005 the plaintiff had noted over the last six months increasing episodes of lateral sided pain over the knee. There was some tenderness and a CT arthrogram conducted on 16 May 2005 showed prolapse of the anterior part of the lateral meniscus into an anterior‑central depression in the lateral tibial plateau. By 21 May 2005 the plaintiff was reporting that locking had become less troublesome over the previous month and he still had a good range of movements in the knee.
Mr Prosser noted that the plaintiff had not needed further days off work since he returned to work and that household chores were hard at first, particularly mowing the lawn, but noted at that time that the plaintiff was then completing all of his chores.
Mr Prosser prognosticated that the knee could require further treatment in the future by removal of the plates but that at that time they were not bothering the plaintiff enough. He also said that if the giving way of the knee should become more troublesome then an arthroscopic assessment and possible debridement of the lateral meniscus may be required. He said in the longer term the plaintiff was at some increased risk of degenerative changes in the injured lateral compartment of the knee which could require joint replacement surgery. However, he said:
"Generally fractures of the lateral tibial plateau run a relatively benign course."
Mr Prosser concluded that in the longer term there was a mildly increased risk of degenerative changes and were they to develop they could limit the plaintiff's working life. He assessed the knee at a 10 per cent permanent disability of the leg at or above the knee.
Mr Prosser's final report was dated 25 June 2009 and followed review of the plaintiff on 24 June 2009. In that report he categorised the plaintiff's injury to his knee as fairly severe. He also added in respect of the treatment that a bone graft had been placed under the elevated segment in the central plateau for support.
He reviewed the plaintiff's progress over time and noted that examination showed mostly a normal function in May 2005. He noted that by November 2008 the plaintiff's knee had been giving trouble during the proceeding winter and he had pain in the knee particularly turning on the knee or walking on uneven ground. The knee had been giving way and feeling weak. He had been unable to return to bushwalking. Examination then showed some tightness in the ligaments for the patella and some pain with medial glide of the patella and some grating under the patella when the knee was bent.
At the time of that report (25 June 2009) the plaintiff was reporting that the knee symptoms had been aggravated again with the cold winter weather. Examination on that occasion showed the plaintiff to walk satisfactorily, the thigh muscles were of normal bulk with no wasting and there was no effusion in the knee. The knee was in neutral alignment but lacked the last few degrees of extension. The knee ligaments were all stable. There was some tenderness over the lateral joint line in the area of the injury over the plate used for fixation. The knee fully flexed.
Mr Prosser noted that the last x-rays of 29 May 2009 showed that the patella femoral joint and the medial compartment were normal. He noted that the lateral compartment had no narrowing of the joint space and that at six years after the accident there was a good prognostic feature that there has not been progressive narrowing. He noted a minor residual central depression.
Mr Prosser reviewed the plaintiff's employment history and the job description that had been supplied to him of the plaintiff's work as a supervisor in the dry mill. He noted it was a hands‑on position and that his job required that he walk around the site with constant standing and walking and climbing stairs with physical demands including squatting and kneeling and hands‑on work on machinery.
Mr Prosser then assessed the disability to the right knee as a 5 per cent permanent disability of the right leg above the knee. He noted that personal mobility was not restricted for day-to-day activities but some restriction for more demanding walking over longer distances. He noted that the plaintiff was restricted for his household duties given persisting pain from his shifts at work. His general social, recreational and sporting activities had been significantly limited.
Looking forward Mr Prosser thought that there may be gradually increasing discomfort in the lateral compartment of the knee if there is progression of degenerative changes mobility and restrictions could increase.
He thought that the plaintiff should consider surgery for the removal of the plate which may assist with the aching. Longer term he said that degenerative changes may progress in the lateral compartment of the knee that could require medical or surgical intervention with a joint replacement being the most likely.
As regards the plaintiff's capacity for work and having regard to the job description given to him, Mr Prosser said:
"It is now six years after the injury, and the knee disability will be stable for the medium term. Mr Burns is likely to be able to continue as at present for the foreseeable future, with some continuing partial incapacity due to pain, which has caused some changes in the way that he works, as has been reported above. He will continue to have difficulty for joining the workers for hands-on work, and will need to confine himself to a more supervisory role. Walking around the plant will continue to cause some discomfort, particularly on the colder night shifts. In the more distant future there may be gradual progression of degenerative changes in the knee perhaps in 10 to 20 years time, that will gradually cause more restriction … He should be able to continue in his work in the foreseeable future, but with some restrictions compared with the case prior to his accident."
Mr Prosser opined that in a supervisory position Mr Burns should be able to work full‑time.
The plaintiff also led evidence from Mr Tony Robinson, an orthopaedic and knee surgeon. He produced a report dated 9 June 2009 (Exhibit 15). In that report he set out the plaintiff's then present complaints being constant pain in the front region of the right knee increasing with getting up from squatting or kneeling positions, cold weather, going up and down steps approximately 50 per cent of the time, and twisting. He also said the pain was associated with generalised swelling as well as localised swelling over the outer aspects of the right knee and giving way which occurs twice weekly.
Mr Robinson noted that a CT/arthrogram performed on 10 November 2008 showed some anterior focal depression in the lateral tibial plateau and an obliquely oriented lateral meniscus due to the deformity of the adjacent lateral plateau. Further, plain x-rays on 29 May 2009 showed a deformity of the lateral tibial plateau. In his examination Mr Robinson noted localised swelling over the inferio‑lateral border of the patella with full extension of the right knee. He further noted tenderness in the lateral joint line and in the region of the lateral tibial plateau. Grade II patella maltracking on the right was noted and Grade I ‑ II laxity of the lateral joint line.
Mr Robinson in his report was of the view that the plaintiff would need some form of joint replacement in 10 years time. In the meantime if pain increased he would be a candidate for a right knee arthroscopy, wash out, debridement and removal of the metalwork.
Mr Robinson assessed the residual disability as moderate and being 15 per cent at and below the level of the right knee.
Mr Robinson believed that the disability would probably be worse in the future as the osteoarthritis process progresses. He thought the plaintiff would have increasing problems with carrying out his work in the future. At the present time the plaintiff had problems but he was able to cope with his normal duties but had to rely on having four days off to recover from right knee pain following work. He thought that the plaintiff was fit to carry out his work and would continue to be fit to work as a supervisor for at least five to 10 years, but if he did have problems which did not diminish with appropriate treatment he would have to consider changing occupations.
Mr Robinson was cross‑examined particularly with regard to the views expressed by Mr Prosser. He was asked whether or not he had read Mr Prosser's reports. He said that he had merely skimmed through them and that he does not usually read the reports of other people. He said that he was not interested in what Mr Prosser had to say as he forms his opinion from the patient, his history and examination. He did not think it would be helpful to look at operative notes or observations from the treating surgeon to assist in his prognosis. He relied entirely upon his experience as a registrar for 6½ or 7 years.
The defendant led evidence in a report from Dr Martyn Flahive, Consultant Occupational Physician, dated 25 May 2009 (Exhibit 17). Dr Flahive reviewed the plaintiff on 25 May 2009 and in his report he noted as part of the history that the plaintiff was off work for about six months after the accident. He then returned on restricted duties but then able to return to normal work duties which he had been undertaking since. He noted that the plaintiff had not had any significant ongoing treatment. He further noted that the plaintiff only took Panadol and then perhaps four tablets a shift.
Dr Flahive noted that the plaintiff had no difficulty with sitting, driving and when at work was able to stand up to nine hours per shift and walk a reasonable distance, climb stairs through the day but by the end of the shift he had a limp. He noted that it was difficult for the plaintiff to crouch and kneel which causes him discomfort. Dr Flahive commented upon the various investigations that had been carried out and conducted his own examination. He noted there was full range of knee movements. He said the ligaments were intact on testing and there was good knee stability with intact anterior and posterior instability and collateral ligaments being intact. He noted a slight wasting in the right thigh and some mild tenderness in the medial lateral joint line.
Dr Flahive assessed the plaintiff as having suffered a comminuted fracture of the right knee lateral tibial plateau with associated depression of the tibial plateau. He noted that the plaintiff continued to undertake his normal household chores and that the plaintiff had made a reasonably good recovery from his injuries, although reporting a degree of ongoing symptoms but not resulting in any substantial ongoing disability. He also noted what he described as a small risk of a knee replacement, perhaps in 15 to 25 years' time.
Dr Flahive assessed the plaintiff as having a residual disability in terms of his right knee at 10 per cent loss of the use of the right leg. He assessed him as being fit to pursue his pre‑accident employment and indeed pursue whatever other employment he wished to pursue. He did not expect the plaintiff's capacity to pursue domestic, social and activities of daily living to be affected by the injury. His prognosis for the plaintiff was positive.

Findings

I find that the injury to the plaintiff's knee is a fairly severe injury as described by Mr Prosser. Generally I prefer the evidence of Mr Prosser to that of Mr Robinson where it is in conflict. Mr Prosser was the treating orthopaedic surgeon and has seen the plaintiff off and on over the last six years. In my view he is in a better position to assess the plaintiff and his prognosis. Further, Mr Robinson, in giving his opinion, did not have regard to the views expressed by Mr Prosser. Of course Mr Robinson is entitled to his opinions. However, I would have thought that such opinions would have been, at the very least, further assisted and informed by the opinions of others particularly those who have treated the plaintiff over a period of time.
I find that the plaintiff has made a good general recovery from his knee injury, but that he has been left with a risk of osteoarthritis in the future. I also find that there is a risk of the plaintiff requiring further treatment in the future. All of the medical practitioners seem to agree upon this. Mr Prosser does not actually opine as to when this may be, merely describing it in relation to the knee replacement but does refer to progression of degenerative changes in 10 to 20 years. Dr Flahive suggests 15 to 25 years hence for surgery and Mr Robinson 10 years hence. Doing the best I can and having regard to the fact that the plaintiff is experiencing some continuing problems I would err on the side of caution and find that the likelihood is that this surgical intervention would be required in about 15 years time. Mr Prosser has opined that the joint replacement would cost approximately $30,000.
Mr Prosser also refers to the cost of removal of the plate from the knee as this would improve symptoms. The cost of this surgery would amount to $7,000. It seems from the evidence of Mr Prosser that this should be done sooner rather than later, but if left would be done at the same time as a joint replacement. Accordingly, there may be some savings in this regard.
So far as the plaintiff's wrist is concerned, again the plaintiff has made a good recovery. He is left with what can be described as only mild residual weakness in the wrist as I have previously described and I so find.
I find that the plaintiff has made a good recovery from the injuries to his teeth and face.
There remains the issue of the alleged post-traumatic stress disorder (PTSD). The plaintiff was seen by Leonie W Coxon, clinical and forensic psychologist, on 6 September 2005. She produced a report dated 13 October 2005 (Exhibit 16).
The defendant objected to the evidence of Ms Coxon (which I received provisionally) to the extent that it constituted a psychiatric diagnosis which is part of the practice of medicine and only a medical practitioner can give those opinions. Ms Coxon is not a medical practitioner. The plaintiff relies upon the psychological methodology used by Ms Coxon in arriving at her diagnosis of PTSD. I will come to her evidence in a moment.
The plaintiff also relied upon the ruling by Hempel J in R v Whitbread, (1995) 78 A Crim R 452 in which his Honour noted the role and experience of a psychologist. His Honour noted:
"It is common experience in both civil and criminal courts for psychologists to be called to express opinions about such processes called dissociation. In my experience I have not heard an objection taken to the expressions of such opinions by psychologists on the ground that they are not qualified. In my view therefore the respondent's argument to the contrary is misconceived."
In Nepi v Northern Territory of Australia, unreported; SCt of NT; BC9701834; 2 May 1997 Martin CJ was called upon to deal with an issue as to whether or not a psychologist was permitted to express an opinion as to whether or not the applicant in that case was afflicted by PTSD. His Honour noted that in that case there was no question of any lack of testing or that the history given by the applicant was incomplete. He also noted that opinions of clinical psychologists as to PTSD had been frequently received and acted upon by the courts. In coming to his decision to allow the evidence his Honour referred to Klimoski v Water Authority of Western Australia (1989) 5 SR(WA) 148 and distinguished the same.
In the present case Ms Coxon in her report carried out a number of psychometric assessments including the FOA Post‑Traumatic Stress Diagostic Scale which is designed to aid in the diagnosis of PTSD based on DSM‑IV criteria. She said in evidence that there was an overlap between psychiatry and psychology but both psychiatrists and psychologists used DSM‑IV in diagnosis for PTSD. This test has been used since 1984.
In addition to the FOA test Ms Coxon also carried out other tests to establish the plaintiff's emotional state.
The result of her tests was that as to PTSD all six DSM‑IV criteria were met. She described the impairment and severity as moderate. It was to this assessment that objection was taken.
The emotional state was described as a mild state anxiety with a mild trait anxiety and mild to moderate stress with moderate depression.
Ms Coxon was of the view that the PTSD was a result of the plaintiff's response to the accident and not from some other source. She thought that the PTSD and the anxiety and depressive symptoms would continue indefinitely and that he required some treatment for PTSD. She said:
"It appears that Mr Burns' capacity for the activities of daily living are compromised, in that he has great difficulty with household chores and duties. This is partially due to his bodily aches and pains and partially due to his poor cognitive and emotional state, which makes such activities problematic. His enjoyment and quality of life have also suffered in that he is no longer able to take pleasure in previously enjoyed activities such as mountain bike riding, swimming and snorkelling. His capacity to work at present is somewhat impaired, although he stated that he is managing with some modification of duties at present. His capacity to work in the future, however, is less certain, particularly with respect to how he manages his bodily pain."
I am prepared to receive the evidence of Ms Coxon. It seems to me that she is well qualified as a clinical psychologist and that the evidence of psychologists as to such matters as PTSD is now accepted in this court on a regular basis. Further it seems to me that with the level of experience that she has demonstrated it would be unrealistic to suggest that she did not have expertise in order to express an opinion as to the level of impairment in functioning. That is a matter that is now frequently dealt with by psychologists, albeit it is also dealt with by psychiatrists.
However, having accepted that she is able to give the opinions that she does, I note that the passage which I have quoted from her report above in relation to the plaintiff's work capacity is somewhat in contrast to that which he expressed to Mr Prosser.
I am satisfied that the plaintiff suffered some PTSD by the events which gave rise to it. However it does not appear to me to be of any great severity. Further, I accept that the plaintiff has probably suffered anxiety, stress and some depression arising out of his injuries but again I do not accept that they are to any great degree. The plaintiff has to a very large extent resumed his working and daily activities according to the medical evidence. There is some restriction but not such as to lead in my opinion to any significant disability from a psychological viewpoint.
I have gone into some detail as to the plaintiff's work and have described his disabilities. The plaintiff is coping with his work and has done so for some considerable time since returning to work. Nevertheless the medical evidence points to and I find that at some future time he may be restricted in his hands‑on capacity to work. There is the risk of osteoarthritis in the future.

Evidence was led from Wayne Frith Thompson who is a production coordinator at Tiwest. He also gave evidence about the plaintiff's work. He described the ratio between physical and administrative work as being 80 per cent/20 per cent. However he said that that was changing and the job was becoming more administrative. He described the supervision activities as involving physical work and maintaining plant and getting around the plant. It also involves training of new operators and aspects of safety. He described the necessity to deal with breakdowns such as changing belts and pulleys. This requires kneeling, squatting and crouching in tight places.
The evidence of Mr Thompson was that the plaintiff was a good operator who had no problems with his duties before his accident. When he returned on light duties he had a limp. However since then he said that he does his duties as well as can be expected and still has a limp especially after being busy. He described the plaintiff as still doing a very good job. He also gave somewhat vague evidence about shift allowances payable to supervisors.
I find that there is a risk that at some future time the plaintiff may be restricted in his hands-on work at the plant. The plaintiff is now 45 years old. I find that there is a risk that with his deterioration in the future he may be forced onto the labour market whether because of his injuries or because of any number of other factors relating to his work. If that were to occur then with his injuries and disabilities he would suffer some restrictions on the open market.
However, I am not satisfied on the evidence that there is any great risk to the plaintiff's job both by reason of his injuries and disabilities or other factors. Nevertheless a risk does exist.
In assessing the plaintiff's damages for non‑pecuniary loss I have to have regard to s 3C of the Motor Vehicle (Third Party Insurance) Act 1943. The amount of damages to be awarded for such loss is to be a "proportion, determined according to the severity of the non-pecuniary loss to the maximum amount that may be awarded". The current maximum amount is $327,000.
I have found the plaintiff's injury to be fairly severe with risks in the future. It has affected his personal life as he has described and has caused him and continues to cause him some difficulties at work.
In this case I would place the plaintiff at 20 per cent of the most extreme case as that expression is understood in the Motor Vehicle (Third Party Insurance) Act 1943. Accordingly, the plaintiff's entitlement to damages under this head would have been $64,800.
The plaintiff suffered no past loss of earning capacity as such. During the period of his convalescence from his injury the plaintiff received payment of sick leave credits he had amassed over the period of his employment with Tiwest. Nevertheless the plaintiff is entitled to be compensated for the use of his entitlement to sick leave. There was no evidence to show that any sick leave entitlement had a capital value to the plaintiff in the event of the plaintiff's employment coming to an end. Accordingly, having regard to the approach taken in the "Assessment of Damages For Personal Injury and Death" (4^th ed, by Professor Luntz and the cases there referred to) the plaintiff should receive compensation for the loss of the value of the chance that the plaintiff might fall ill in the future and be compelled to take leave without pay.
There was a paucity of evidence about the extent of the plaintiff's sick leave entitlements or his health generally. There is the risk that the plaintiff may have to have further surgery for removal of the plate or indeed at some later stage a knee replacement. However the knee replacement appears to be, on my findings, so far in the future that one would hope that the plaintiff would have amassed further sick leave entitlements in this regard.
It seems to me that an appropriate award would be a global award. Having regard to the fact that the plaintiff was off work for some five or six months he would have necessarily used up a good deal of sick leave entitlements. I would assess the risk on a global basis as to the future in the sum of $5,000.
There is no evidence that the plaintiff, having taken sick leave credits has in fact lost any benefit to past superannuation.
There is now the question of future loss of earning capacity. The plaintiff is to be compensated for loss which is or may be productive of financial loss; Graham v Baker (1961) 106 CLR 340.
At the present time the plaintiff is maintaining his work, albeit with some difficulties at the end of his shifts. He is not suffering any ongoing loss at the present time. Nevertheless there is a risk to him in the future as I have described. No mathematical precision can be placed upon this calculation; see State of New South Wales v Moss (2000) 54 NSWLR 536 per Heydon JA (as he then was) at [87]. Having regard to the fact that the eventuality, should it occur, would be well into the future, I would assess a global sum of $75,000 to cover this eventuality. In coming to this figure I have had regard to matters relating to the tax advantages obtained by the plaintiff by being able to obtain a motor vehicle by salary sacrifice and the right to superannuation contributions.
In respect of the future medical expenses, apart from the surgical expenses to which I have referred, Mr Prosser was of the view that the ongoing expense for medical treatment to the knee would consist of medications at a cost of about $80 a month. Allowing for the plaintiff's present age and life expectancy and applying appropriate multipliers, I would allow in round terms $13,500 in respect of this part of the claim.
In respect of the cost of surgery including the possible removal of the metal in the plaintiff’s knee, and allowing for the deferral of this expense for the period to which I have referred and making some allowance as to the risk thereof, I would allow $12,500 for the same.
Accordingly, the total for future medical expenses is $26,000.
The plaintiff claimed also gratuitous services. I accept that for an initial period after his accident the plaintiff would have required the assistance of his wife in his daily washing and other activities. However, I am not satisfied as to any ongoing need for this. The evidence in this regard was vague. Further the plaintiff is managing his work. At the end of the day he requires some time to recover. Nevertheless he is still able to mow his lawns and do other chores around the house. Other duties I consider to be of a domestic nature that fall to be shared naturally between partners.
The Motor Vehicle (Third Party Insurance) Act by s 3D provides for damages for gratuitous services. The Act prescribes a limit on such damages and a means by which they may be calculated. Further, the Act prescribes a threshold (currently $6,000) below which no damages are to be awarded.
The parties have agreed that the appropriate rate for past gratuitous services should be $21.41 per hour.
The evidence of the plaintiff's wife was that after the plaintiff was discharged from hospital she tended to him for half an hour a day – 3½ hours per week. She did this for the first four weeks and then it dropped off in nine weeks. I would average it out at 3½ hours per week for six weeks being 21 hours which at $21.41 per hour amounts to $449.61.
In addition there was the travelling at two hours per week which if allowed for six weeks would come, by similar arithmetic, to $256.92.
It can be seen that on those calculations the total value of the services is $706.53 which is well below the threshold. Accordingly, I would have made no allowance for gratuitous services.
Special damages comprising payments made by HBF and Medicare on the plaintiff's behalf amounting to $11,365.98 and $2,532.45 respectively. These are detailed in the plaintiff's Exhibits 1 and 2 and there does not appear to be any argument as to these. Pharmacy expenses are also claimed in a sum of $940.
Past travelling expenses to and from doctors' appointments are claimed in an amount of $1,000 which appears to me to be a reasonable assessment. I would make no allowance for future expenses.
All up the plaintiff claims (in round figures) $15,000 for his special damages and this appears reasonable.
Accordingly, my provisional assessment of damages is:
Damages for non-pecuniary loss $64,800
Loss of sick leave credits $5,000
Future economic loss $75,000
Future medical costs $26,000
Gratuitous services Nil
Special damages $15,000
Total$185,800

Conclusion

In view of my findings on liability the plaintiff's claim should be dismissed.