Carr v Nicholls
[2007] NSWDC 160
•25 May 2007
CITATION: Carr v Nicholls [2007] NSWDC 160 HEARING DATE(S): 21 and 22 May 2007
JUDGMENT DATE:
25 May 2007JURISDICTION: District Court - Civil Jurisdiction (At Wagga Wagga) JUDGMENT OF: Johnstone DCJ at 1 DECISION: Judgment for the plaintiff in the sum of $759,733.26; Defendant to pay the plaintiff’s costs, on the ordinary basis up to 17 November 2006, and thereafter on an indemnity basis CATCHWORDS: Negligence - motor accident on the road to Gundagai - plaintiff passenger - breach of duty admitted but contributory negligence pleaded, alleging a failure to wear a seatbelt - seatbelt removed by defendant - Damages - no issue of principle, and case turned on its own facts LEGISLATION CITED: Motor Accidents Compensation Act 1999 PARTIES: Carissa May Carr (Plaintiff)
Aaron William Nicholls (Defendant)FILE NUMBER(S): 49/06 (Wagga Wagga) COUNSEL: Mr I Roberts SC with Mr R Foord (Plaintiff)
Mr A Black (Defendant)SOLICITORS: Denniston & Day (Plaintiff)
TL Lawyers (Defendant)
JUDGMENT
Introduction
1. Ms Carr was injured in a motor accident at about 9.15pm on 29 November 2003 when she was travelling as a passenger in a Toyota landcruiser utility driven by Mr Nicholls, the defendant. The accident occurred when the utility overturned on a right hand bend on Willis Road, Gundagai, rolled and came to rest on its roof. The road was a dirt road and Mr Nicholls failed to maintain control of the vehicle. It is alleged he was travelling at an excessive speed.
2. These proceedings were commenced on behalf of Ms Carr alleging negligence by Mr Nicholls and claiming damages. Breach of duty is admitted, but contributory negligence is pleaded. It is alleged that Ms Carr was not wearing a seat belt.
3. As a result of the accident Ms Carr sustained a serious and permanent back injury. She has undergone significant surgery and will probably need to undergo further back surgery in the future. She is left with permanent scars. She has been significantly disabled. She also suffered from a post-traumatic stress disorder, although that has now largely resolved. The issues relating to the assessment of damages are:
· The extent of the past out-of-pocket-expenses incurred.
· The extent of any need for future out-of-pocket-expenses.
· The extent of the net earnings lost in the past.
· The extent of any loss of future earning capacity.
· The extent of any lost superannuation, in the past and in the future.
· The extent of any need for domestic assistance in the past, and future.
· The amount of damages to be awarded for non-economic loss.
The motor accident on 29 November 2003
4. At the time of the accident Ms Carr, then 17, was living with Mr Tim Manns (who at that time called himself Tim Brown) in Gundagai. After work on 29 November 2003 he spoke to his friend, Mr Aaron Nicholls, by phone and was asked to drive Mr Nicholls’ Toyota landcruiser utility out to him at a nearby property where he was working with his uncle. Mr Manns and Ms Carr collected the utility and commenced driving out to meet Mr Nicholls. Mr Manns drove.
5. The utility was a 5-speed manual, with no back seat. In the front, there was a bucket seat for the driver, fitted with a lap and sash seat belt, and a single bench seat to accommodate two other front seat passengers. Seat belts normally fitted on the passenger bench were a lap sash belt for the seat at the left next to the passenger door, and a single lap belt in the middle, with the receptacle on the right of the bench. On the journey out Ms Carr sat in the left passenger seat and wore the lap sash seat belt. Neither she nor Mr Manns paid any attention to the middle seat belt.
6. After arriving at the property, they stayed there for about an hour or so watching Mr Nicholls baling hay with his uncle, during which time Mr Manns drank some beers. Prior to their departure, Mr Nicholls also had one beer. It is not suggested that Mr Nicholls was affected by alcohol, although the defence alleged that by the time of the accident, Mr Manns was intoxicated.
7. Mr Nicholls, Mr Manns and Ms Carr all got into the front of the utility to head back to Gundagai. Mr Nicholls sat in the driver’s seat. Mr Manns sat at the left of the bench next to the passenger door. Ms Carr sat in the middle. Her evidence was that she plugged the lap seat belt into the locking mechanism. She didn’t tighten the belt, as it was just right, not tight, not loose. It clicked in and required no adjustment. Mr Manns recalls seeing her put the seat belt on and ‘buckle it up’.
8. They then set out on the road to Gundagai. It was getting dark. It was a dirt road. It was hilly. It was winding. It crossed several cattle grids. Mr Nicholls was driving. They had been travelling for about 20 minutes before the accident. There is conflicting evidence as to what occurred during that prelude. Ms Carr said Mr Nicholls was driving too fast, at speeds up to 120kph. Mr Manns said 110kph, and that the utility actually became airborne when crossing one cattle grid. Ms Carr said she nearly hit her head on the roof as a result. She asked Mr Nicholls to slow down, but he refused to do so, saying something such as: “It’s alright”. Mr Manns also asked him to slow down but Mr Nicholls continued to speed and responded saying: “I can drive well in a cruiser, but put me in a Commodore and I’m no good”. And, as the utility approached the fateful corner, Mr Nicholls said: “Watch me go round this corner!”. He lost control of the utility and it rolled.
9. Mr Nicholls denied these events and conversations. He said he was not travelling over 100kph. He couldn’t remember how fast he was going, but said it was an appropriate speed for the conditions. Clearly it wasn’t, at least so far as that corner was concerned. He specifically denied that the utility became airborne over the cattle grid, and then bounced. He would only concede that the rear ‘kicked up’ because it was a rough ramp. He blamed the accident on the loose gravel, which he said was ‘like marbles’.
10. It was the case for the defence that Ms Carr did not buckle up her seat belt, but simply had it resting over her lap, holding it in place.
11. The events and conversations following the accident are similarly in dispute. Ms Carr remembers the vehicle rolling and she closed her eyes. When she opened her eyes she saw glass and dirt. She ended up on the ceiling of the upturned vehicle, ‘scrunched up’ like a ball. She felt pain in her back. Mr Nicholls and Mr Manns managed to get out, but she had to be pulled out through the driver’s window. Once out, she stood up but the pain in her back and legs was so severe she had to sit down. Mr Nicholls rang the ambulance and his uncle. Mr Manns phoned Ms Carr’s mother. According to Mr Manns, Mr Nicholls became very angry with himself and started punching the windscreen of the utility saying: “I’m going to get sued”. He had to be pulled to the ground and calmed down. Then, according to Ms Carr, she saw the seat belt lying nearby on the ground. The buckle was still done up. She said to Mr Nicholls: “What is the seat belt doing out there?” He replied: “Oh, shit, I forgot to put it back in. I was cleaning the vehicle out and forgot to put the seat belt back in”. Mr Manns recounted a similar version of the conversation. According to him, Mr Nicholls said: “I’m so sorry. I forgot to tell you it wasn’t bolted in”.
12. Mr Nicholls denied these events and conversations. He said he did not punch the utility. He said he did not remove the middle seat belt, and that it was not lying on the ground next to the car after the accident.
13. After about half an hour the ambulance arrived. The ambulance report records that Ms Carr was complaining of lumbar back pain and noted other lacerations and contusions. The report also records that: “ pt stated was not wearing seat belt”. She was taken to Gundagai Hospital.
Was Ms Carr guilty of any contributory negligence?
14. It was submitted for the defence that I should find that the middle seat belt was not unbolted, and that Ms Carr failed to use the seat belt, choosing to hold it across her waist, unfastened. Her injuries were caused or exacerbated by her failure to use the seat belt.
15. To so find would require me to prefer the evidence of Mr Nicholls, and reject the evidence of Ms Carr and Mr Manns. Indeed, it would require me to accept that they made up an elaborate lie, embellished by some explicit conversations. The defendant asks me to accept that the suggestion that the seat belt was unbolted is incredible and not believable. Or, that even if it was, she should have realised.
16. In my view, the removal of the seat belt by Mr Nicholls is not so improbable that I should not accept that it occurred. Nor is its discovery beside the overturned utility unlikely. If indeed it was unattached, it is more probable that it came out with Ms Carr when she was dragged from the vehicle.
17. In my assessment, Ms Carr was not a person likely to concoct a lie of such proportions. In my view she was a straightforward, truthful witness. Indeed, she was reticent in describing her pain, and gave an unembellished account of her injuries and her disabilities. She has not sought to exaggerate in any material respect. The only time I thought she might have tended to overstate her case was in professing embarrassment from her scars, yet she persisted in wearing a bikini, rather than a one piece costume, when swimming: see for example the report of Professor Haertsch. That is an explicable outcome of youthful vanity. On the other hand, she did not labour the effects of her post-traumatic stress disorder.
18. Nor was Mr Manns capable of maintaining such an elaborate fabrication, even if he were of the character to consider participating in such a deception, which I do not believe he is. In my assessment he was an uncomplicated, artless witness, telling the story the way it was.
19. Mr Nicholls, on the other hand, attempted to downplay the seriousness of his conduct and to exculpate himself from the consequences of his carelessness and foolhardiness. More mature reflection upon his misguided bravado has in my assessment led him to compound his actions by failing to concede his culpability. I have no doubt that he was speeding. I am comfortably satisfied that he failed to heed requests to slow down, and was attempting to show off. If he was capable of these obfuscations, then I believe he was also capable of concealing the truth as to the removal and failure to replace the seat belt.
20. My view as to the credit of Mr Nicholls is reinforced by the circumstance that it was in my view improbable that the first he learned of the suggestions he was speeding and had removed the seat belt, without replacing it, was, as he insisted, recent. It was clear to me that he must have known much earlier, and at the latest by the time of his plea in the criminal proceedings in July 2004.
21. It follows that I prefer the evidence of Mr Manns and Ms Carr where it is in conflict with that of Mr Nicholls.
22. The defence points to various statements ascribed to Ms Carr as evidence of admissions that she was not wearing the seat belt. These included the claim form and some histories recorded by doctors. In my view these are not inconsistent with her account. As to the ambulance report, that record, untested by cross-examination of the officer involved, has little weight and does not in my view detract from Ms Carr’s account, as it is capable of rational explanation consistent with her version of events.
23. I find, therefore, that the middle seat belt used by Ms Carr was not bolted in place. I find further that she was not aware of the defective state of the seat belt. She did in fact buckle the seat belt up, but remained unaware that it was not secured to the vehicle. It follows that Ms Car did not fail to take reasonable care for her own safety and she was not guilty of any contributory negligence.
24. But even if I had been satisfied that the seat belt was properly attached to the vehicle, and that Ms Carr deliberately spurned its use, in my view her relative culpability compared to that of Mr Nicholls was minor. Further, the defence failed to adduce any substantial evidence of causation or exacerbation of her injuries resulting from the absence of the effect of seat belt restraint. In all the circumstances, therefore, I could not have been satisfied that it would be just and equitable that the damages recoverable by her should be reduced by any more than 10%.
25. I am, however, satisfied there was no contributory negligence on the part of Ms Carr that caused or contributed to her injuries, and the damages to which she is entitled will not be reduced.
Damages
26. I turn to consider the damages to which Ms Carr is entitled.
27. She seeks damages for past out-of-pocket expenses, for future hospital, medical and other out-of-pocket expenses, for past and future attendant care, for loss of earnings in the past, for a significant loss of earning capacity in the future, and for non-economic loss. The parties were able to agree on the quantification of past and future attendant care, as set out in Table A below, and I find accordingly. I do, however, need to address each other head of damage claimed.
28. Ms Carr was born on 24 April 1986 and is now 21. She has lived all her life in Gundagai, where she went to school, leaving after Year 10. She continues in her relationship with Mr Manns and they have a son, Riley, now 18 months old. She and Mr Manns have recently purchased a small property on which they plan to build their family home.
29. While still at school she had some work experience at the Child Care Centre at Tumut. She enjoyed this work and decided that was the career she wanted to pursue. She knew, however, that she needed to be 18 to undertake the traineeship. After she left school she worked in various manual jobs, including rubbing down vines at vineyards, and in a supermarket. It was her intention, but for the accident, to apply for a traineeship at the Gumnut Childcare Centre in Gundagai, or to go to TAFE, and she was saving up for that.
30. Following her accident she was taken by ambulance to Gundagai Hospital, but due to the seriousness of her injuries was transferred to the Wagga Base Hospital, and on 3 December taken by air ambulance to Sydney, to Westmead Hospital. Here she came under the care of Dr Cree. She had previously consulted Dr Cree in respect of a congenital lumbar scoliosis at L1-4, which was discovered some years earlier. Dr Cree became her treating specialist and subsequently performed the operative procedures required to repair her damaged back.
31. Her injuries were diagnosed as a severe comminuted fracture of the 2nd lumbar vertebra with antero-lateral compression and retropulsion of fragments into the spinal canal, this being the main disabling injury, and an anterior compression fracture of the 7th thoracic vertebra. In accordance with Dr Cree’s advice, she underwent surgery on 5 December 2003, consisting of a vertebrectomy at L2, cage insertion and plate fixation from L1 to L3. The objective was to reconstruct the burst fracture of L2 and correct the scoliosis. It involved the harvesting of bone from her left ribcage for grafting at the fracture site. This left her with substantial scars. She was immobilised in a plastic back brace, extending from her armpits to the pubis, which she was required to wear for three months. It was extremely uncomfortable. She was discharged 10 days later and went home to recuperate. On review in March 2004, however, it was evident that further surgery was indicated. In particular, it was discovered that there had been some loss of position of the construct from the first operation. Accordingly, she went into the Mater Hospital for a second operation on 1 April 2004. On this occasion, Dr Cree performed a posterior anterior revision with the insertion of rods and screws and a further bone graft, the donor site on this occasion being the left posterior iliac crest, leaving further unsightly scarring. She was discharged on 13 April 2004, but again had to wear an uncomfortable plastic body brace for several months.
32. Following the accident, Ms Carr also began to experience bad dreams and disturbed sleep, involving images of the accident. She became fearful of driving and this remains with her even now to some extent.
33. The medical evidence establishes that she developed a post-traumatic stress disorder, the symptoms of which persisted for about a year. With time, however, this abated to an ‘adjustment disorder’ involving post-traumatic anxiety. I am satisfied, however, that although she still experiences anxiety from time to time, she has recovered from her psychological condition. Further treatment or counselling is not required.
34. Orthopaedically, Ms Carr is now stable. She has had a good outcome from the surgery but is left with a significant permanent back disability. It is to be noted that her recovery has been complicated by her pre-existing scoliosis, but it is not suggested that the outcome has been exacerbated by that condition. Her leg pain has abated. She is left with a back that is prone to episodic pain, particularly as a result of activity involving bending, lifting, sitting or standing for long periods, or which tend to jar her back. Her limitations in movement affect her ability to run and to perform heavy tasks.
Out-of-pocket expenses
35. The parties agreed that Ms Carr has incurred medical, hospital and other necessary out-of-pocket expenses amounting to $74,267.00. She claims a further $1,200.00 relating to accommodation expenses incurred by her mother whilst Ms Carr was in hospital. This claim was not conceded, but no submissions were made as to why such expenses were not reasonably incurred and recoverable. In my view such expenses were reasonable and appropriate in this case and I allow them. I therefore find past out-of-pocket expenses proved in a total sum of $75,467.00.
36. As to the future, a claim is made for $20,000.00, relating principally to the potential need for surgery in the future. In my view, based on the medical evidence, this is a modest claim, and I allow it.
Economic loss
37. It is not disputed that Ms Carr has suffered a loss of earnings or that her earning capacity has been diminished. The dispute relates to the extent of her loss.
38. Ms Carr makes a claim, as to the past, for lost earnings of $22,600.00. The defence submitted that is excessive, and says the loss is only in the order of $5,000.00 to $10,000.00. In my view, however, such an assessment fails to reflect her likely earnings to date and the extent to which her disability has prevented her from working. I consider that the calculation made on behalf of Ms Carr more accurately reflects her probable loss. It proceeds on the basis of a net loss of $300.00 per week from November 2003 to January 2005 (58 weeks). This is the period she would have worked till age 18, before embarking on a childcare traineeship, but was unable to do so. It then assumes a nett loss of $200.00 a week till July 2005, the likely period of the traineeship (26 weeks). This accords more closely to my assessment of her lost earnings and I find, therefore, that her lost earnings were $22,600.00. Lost superannuation of $2,500.00 is to be added giving a total of $25,100.00 for past economic loss.
39. The assessment of her future economic loss is more complex, as the probable course of her future working career is not as clear-cut.
40. It was not suggested that Ms Carr has no residual earning capacity. In fact she believes she will be able to perform secretarial work in the future, probably on a part-time basis. The availability of such work in Gundagai, particularly on a part-time or job-share basis, is however uncertain.
41. The defence relies upon the report of Associate Professor J Athanasou, a psychologist who is also a Consultant in Vocational Guidance. He noted her pre-accident interest in childcare work but considered this was unlikely to eventuate given the levels of her educational achievement in the School Certificate. In his opinion it seems more likely that she would have continued in the workforce at an unskilled level and on a combination of a full-time and part time basis. He judged her long-term participation in the workforce against ‘the typical pattern of participation of females in the labour market’.
42. On this basis, the defendant submitted that the measure of the diminution in Ms Carr’s earning capacity is to be calculated on the basis of a loss of $200.00 a week for the balance of her anticipated working life to age 65.
43. With due respect to the opinion of Associate Professor Athanasou, however, I disagree with him. I don’t consider it appropriate to assess Ms Carr on the basis of a statistical analysis. Those considerations are not irrelevant, but they do not take account of the particular circumstances of this case. I would prefer to make the assessment taking into account the subjective factors, having regard to the individual qualities of Ms Carr. I was satisfied that she had a real and genuine desire to work in childcare, and that she had the necessary level of aptitude and determination to do so. In my experience, as an employer over some 25 years of young solicitors, desire and aptitude were qualities more likely to produce successful practitioners than academic, or even intellectual ability. Childcare does not require a high level of academic or intellectual ability. Rather it requires qualities of patience, tolerance and a love of children. Ms Carr has these qualities. I have no doubt that she would have achieved her ambition and become involved in childcare and had a long and successful career doing so.
44. The calculation made on behalf of Ms Carr, set out in the Plaintiff’s Schedule of Damages, assumes a residual earning capacity of about $200.00 net per week. I agree with that assessment, having regard to the nature of her disabilities and the exigencies of the local labour market. The calculation of her probable earnings, but for her injury, is based on a net weekly figure of $550.00. I am troubled by that figure. I accept the calculation as reflective of her likely weekly earnings but for her injury, but I am not persuaded that Ms Carr would have worked full-time till the age of 65 on a continuous basis. Counsel submitted that a discount of 20% for vicissitudes was sufficient to reflect any period Ms Carr would have been out of the workforce. That concession, however, would only take account of periods relating to her having more children.
45. In my view, it is more probable that in addition to periods of not working at all, due to additional children, she would have had periods of part-time employment, particularly as she became older. I consider that a more accurate calculation of her future economic loss is to assess her probable future earnings over the totality of her working life at $500.00 net per week, but to discount for vicissitudes on the basis of the usual 15%. On this basis her net weekly wage loss in the future will in my view be $300.00.
46. For all these reasons, I am satisfied that the following assumptions about Ms Carr’s’ future earning capacity accord with her most likely future circumstances, but for her injuries: she would have worked in the childcare industry in or around the Gundagai region. She would have worked till the age of 65, but she would not have worked full-time for the whole of her working life and there would have been periods when she did not work, such as when she had further children, and periods of part-time employment, particularly in later life.
47. There are no special circumstances that are to be taken into account, and I find therefore that the damages that would have been awarded are to be adjusted by reference to an 85% possibility that the events concerned might have occurred but for her injuries.
48. I determine the amount of damages for future loss of earning capacity on the basis of a loss of $300.00 net per week for 42 years (x 931.6), deferred for 2 years till her son goes to pre-school (x 0.907), and reduced by 15% for vicissitudes. The amount is $ 215,465.10. Such an amount is in my view appropriate to compensate Ms Carr for her future economic loss. To this must be added future loss of superannuation, which I calculate at $23,701.61. I therefore find future economic loss in a total amount of $239,166.26.
Non-economic loss
49. It was not disputed that the required statutory threshold for damages for non-economic loss has been satisfied: s 131 and s 132 Motor Accidents Compensation Act 1999.
50. The defence submitted that an appropriate award of damages for non-economic loss should be in the order of $150,000.00 to $200,000.00. In my view, however, such an award would be inadequate.
51. In assessing the damages for non-economic loss for Ms Carr, I have regard to the totality of her circumstances. In particular, I take into account her very young age. She has already suffered over 3 years of her youth, with pain, depression, operations, and other difficulties. She had a particularly painful pregnancy, and periods of uncomfortable recuperation during which she was required to wear a plastic body brace. She experienced a post-traumatic stress syndrome, with recurrent images of the accident, and has some residual fear of cars. She is now faced with a lifetime of restrictions and reduced physical capacity, discomfort and pain, with considerable disruption to a normal life and the loss of enjoyment that will produce. She is understandably reluctant to undergo further pregnancies, but if she does she will experience severe pain over prolonged periods. Her sex-life has been adversely affected. She has significant scarring (Exhibit C). She is faced with the prospect of future operative treatment, and deterioration of her condition, including the accelerated onset of arthritis. She is restricted in her capacity for sport and social activity, and is limited in her ability to care for and play with her son. That circumstance is exacerbated by his particular medical condition requiring care and attention over and above that of a normal child. She will not be able to work in her preferred career as a childcare worker. She will not be able to participate to the same extent in the building of her family home and the establishment of a garden.
52. A claim of $225,000.00 is made for non-economic loss and in my view such an award is within the appropriate range having regard to her circumstances. I find, therefore, that her non-economic loss should be assessed at $225,000.00.
Total damages
53. The assessment of total damages is, therefore, as set out in Table A:
Table A
Past out of pocket expenses Future out of pocket expenses Past attendant care and assistance Future attendant care and assistance Past economic loss (including superannuation) Future economic loss (including superannuation) Non-economic loss (general damages) Total damages
Disposition
54. For these reasons I enter a verdict for the plaintiff in the sum of $759,733.26.
55. I direct the entry of judgment accordingly.
56. The defendant is to pay the plaintiff’s costs, on the ordinary basis up to 17 November 2006, and thereafter on an indemnity basis.
(These reasons for judgment were corrected and amended by His Honour, under the slip rule, on 30 May 2007 to substitute 15% for 85% in line 3 of paragraph 48)
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