Carruthers v Pinder
[2005] SADC 122
•16 September 2005
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CARRUTHERS v PINDER
Judgment of His Honour Judge Clayton
16 September 2005
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES
Collision between plaintiff's motorcycle and defendant's bicycle.
HELD: Not to be governed by section 35A of the Wrongs Act 1936. Damages assessed according to general principles.
Wrongs Act 1936 s.35, referred to.
Clyne v Gulpin (1995) 65 SASR 397, applied.
CARRUTHERS v PINDER
[2005] SADC 122
The plaintiff claims damages for injuries received in a road accident on 16 November 2001. At about 7.40pm the plaintiff was riding his motorcycle in a westerly direction on Anzac Highway. As he was negotiating the roundabout at the intersection of Anzac Highway and Tapleys Hill Road, the defendant, who was on a bicycle, rode across his path from his right. The plaintiff braked, but fell off his motorcycle landing on his right side.
The defendant did not file a defence and the action proceeded as an assessment of damages; although the defendant did participate in the trial.
As a result of the accident the plaintiff sustained a fractured right clavicle, six fractured ribs, a soft tissue injury to his right shoulder and elbow and a partially collapsed lung. Bone protruded under the skin of his right shoulder where the collarbone was broken and the right shoulder deteriorated as time passed.
The plaintiff attended at but was not admitted to hospital immediately. He returned the following day for an assessment, was admitted then and remained in hospital for about three days. He had no treatment or surgery while in hospital, but his condition was monitored because of the presence of blood in his lungs.
At the time he was released from hospital Mr Carruthers had his right shoulder in a sling. He ached all over, could not lie down, and had to sleep on a recliner chair for one week. Initially he could not move his shoulder, but that improved with time. Sneezing caused pain, but that also subsided as the weeks went by.
Mr Carruthers was unable to work from 19 November 2001 until 16 January 2002. He lost 38 working days and eight Saturdays. He normally worked 4½ hours on Saturdays. When he returned to work, his shoulder was sore but his chest had healed.
Following the accident the plaintiff’s wife was required to provide assistance, which was gratuitous. She gave nursing type assistance for the first month for approximately two hours a day. I accept that assistance was necessitated by the plaintiff’s injuries.
Mr Carruthers resumed work on light duties, and gradually built up his activities. He had problems with overhead work and heavy lifting. For four or five months he required assistance when lifting. His shoulder ached constantly, particularly when installing overhead cupboards, which requires work above head level. He now has reduced endurance when using his right arm overhead and can only work to 60% capacity. At the present time he is 51 years of age.
The plaintiff repaired his motorcycle after the accident, but only rode it two or three times before selling it. The plaintiff was a casual weekend golfer, but has been unable to resume playing because of his shoulder. Otherwise his leisure activities have not been greatly affected.
The plaintiff’s injuries were corroborated by Dr Lipert who said that the clavicular fracture has united with deformity and shortening of the collarbone, the plaintiff has recovered full movement in his right shoulder and right elbow but is unable to sustain overhead activities to the degree that he could prior to the accident, the ribs have healed without residual effect, he has recovered normal exercise tolerance and it is likely that the basal collapse of the right lung has resolved. Dr Lipert said restricted activity and persistent aching in Mr Carruthers’ right shoulder will remain. He assessed a permanent residual disability at 7½% of the function of the right upper limb at or above the elbow. Dr Lipert noted a cosmetic deformity and narrowing of the right shoulder as compared with the left.
Mr Carruthers left school at the age of 15 after completing third year. He completed an apprenticeship in carpentry and joinery and in 1984 he established a partnership with another person. The partnership existed for approximately 13 to 15 years. On leaving the partnership in about 1997, Mr Carruthers gained employment with a kitchen manufacturer for approximately eight weeks and then worked for about five years as a cabinetmaker. In November 2001, Mr Carruthers returned to work for his former partner working from 8.00am until 3.00pm Monday to Friday, as well as 4½ hours overtime on Saturday at a rate of $25.00 an hour. Mr Carruthers was working in that position at the time of the accident.
Because the accident occurred in 2001 amendments made to the Wrongs Act 1936 by the Civil Liability Act 1936 have no application to this claim. There is, however, a question of whether the accident falls within section 35A of the Wrongs Act 1936. Counsel for the plaintiff submitted that it does not. Section 35A(5) of the Wrongs Act 1936 states:
For the purposes of this section, an injury will be regarded as being caused by or arising out of the use of a motor accident only if it is a consequence of -
(a) the driving of a motor vehicle, or
(b) the vehicle running out of control; or
(c)a person travelling on a road colliding with the vehicle when the vehicle is stationary, or action taken to avoid such a collision.
Section 35A(6) of the Wrongs Act 1936 defines a “motor accident” as “an incident in which injury is caused by or arises out of the use of a motor vehicle”.
In Clyne v Gulpin[1], a plaintiff sustained injuries when a motor vehicle driven by him collided with a cow. Millhouse J held that the incident did constitute a “motor accident” as defined, but that the injury was not a consequence of the driving of a motor vehicle. His Honour found that the plaintiff was not guilty of contributory negligence, but if he had been guilty of contributory negligence the injury may have been a consequence of the driving of a motor vehicle.
[1] (1995) 65 SASR 397
I find that the accident in question was a “motor accident” within the definition in section 35A(6) in that it was caused by or arose out of the use of a motor vehicle. However, does it pass the test in section 35A(5); that is, was it the consequence of the driving of a motor vehicle?
As I have mentioned, the action proceeded as an assessment on an interlocutory judgment, and there was no need for any finding as to the cause of the accident. The Statement of Claim alleges that the negligence of the defendant in her riding and management of the bicycle caused the collision. The bicycle is not a “motor vehicle”. There was no defence and no opportunity for the question of contributory negligence to be raised. In Clyne v Gulpin, Millhouse J said:
The respondent’s injuries were not a consequence of his driving. He did not cause them by his driving. He was not responsible for the accident. The accident was ‘a consequence of’ the appellant’s negligence in letting his cow escape onto the road.
I find that the subject accident was not a consequence of Mr Carruthers driving of his motorcycle, but a consequence of the riding and management of the bicycle by Ms Pinder. The question of contributory negligence on the part of Mr Carruthers does not arise. Accordingly, I find that section 35A(1) of the Wrongs Act 1936 is not relevant to the assessment of damages.
SPECIAL DAMAGES
The only claim is for $320.10 paid to Perrett Medical Imaging. The claim is supported by a voucher and I allow that claim.
LOSS OF WAGES - PAST
The plaintiff has claimed $6,417.00 net of income tax. It is supported by evidence as to a loss of 38 working days of 8.3 hours and eight Saturdays of 4.5 hours, wages at $25.00 per hour. I allow the claim.
GRATUITOUS SERVICES
The plaintiff gave evidence that he received two hours assistance per day from his wife for one month. A market value of $15.00 per hour was placed on the type of services rendered. That is a reasonable rate. I allow $900.00 under this head of damage.
LOSS OF EARNING CAPACITY - FUTURE
I am not satisfied that any loss has been established under this head of damage. The plaintiff is now limited in his capacity to sustain overhead activities and the aching in his shoulder will remain, but I am not satisfied that he is likely to be at a disadvantage in the labour market or that his residual injuries have caused a loss of future earning capacity.
NON-ECONOMIC LOSS - PAST
The plaintiff suffered significant pain and discomfort immediately following the accident. His activities were severely curtailed for about two months. Thereafter his ability to carry out his work and his leisure activities were curtailed but there has been gradual improvement to the extent that the residual disability is now more of an inconvenience rather than a disability.
I allow $10,000.00 for past non-economic loss.
NON-ECONOMIC LOSS - FUTURE
Mr Carruthers has a cosmetic deformity and narrowing of the right shoulder as compared with the left. He has recovered full movement of the shoulder. The restriction on his activities and aching in the right shoulder will remain. The permanent residual disability was assessed at 7½% of the right upper limb at or above the elbow. As I have said, the residual disability is more of an inconvenience than a real disability.
I allow $5,000.00 for future non-economic loss.
For these reasons, I assess damages as follows:
Special damages $320.10 Loss of wages - past 6,417.00 Gratuitous household services 900.00 Non-economic loss - past 10,000.00 Non-economic loss - future 5,000.00 TOTAL
$22,637.10
INTEREST
The plaintiff is entitled to interest from the date when proceedings were issued (29 March 2004), on the gratuitous services, past economic and non-economic loss and special damages. I will hear the parties as to the amount of interest.