Connelly v Spadavechia No. DCCIV-99-1449

CONNELLY V SPADAVECHIA
[2000] SADC 156

Judge Kitchen
Civil

This is an action for damages for personal injuries allegedly suffered by the plaintiff in a collision on 21st October, 1996 between a bicycle being ridden by the plaintiff and a motor car being driven by the defendant. It occurred in the suburb of Taperoo at the intersection formed by Strathfield Terrace, which runs east-west, Military Road, which runs north-south and Rupara Street, which is in effect an extension of Military Road on the southern side of Strathfield Terrace. Traffic entering from Military Road on to Strathfield Terrace is controlled by a give-way sign; traffic approaching Strathfield Terrace along Rupara Street is controlled by a stop-sign.
Both liability for and the extent and consequences of the plaintiff’s injuries are in issue.
For about eight years before the motor vehicle accident the plaintiff had been employed by, first, ICI Soda Ash then by its successor Penrice Soda Ash at a plant in Taperoo. He lived in Henley Beach. His work included periods of hot, heavy manual work to clean ash producing plant. In 1996 the plaintiff was 39 years old. His work pattern was four successive days of twelve hour shifts, two on “days” and two on “nights” followed by four days off, which had been introduced two or three years earlier. After those shifts were adopted there were changes in production control practices, and consequent reductions in the manning of the shifts, which resulted in the outside component of the plaintiff’s work, including cleaning ash producing plant, being performed by one man instead of five. The plaintiff was concerned about his fitness level and his capacity to cope with the increased work-load and in February 1996 he took up regular gymnasium exercise and also riding a bicycle to and from work. On his journey to work he travelled north along Military Road, east along Strathfield Terrace and then north again along Victoria Road; the two sections of Military Road separated by Strathfield Terrace are displaced in the manner shown in Exhibit P2.
On 21st October, 1996 the plaintiff was en route by bicycle to his work place, a journey of approximately forty minutes over fourteen kilometres, intending to arrive about 6 p.m. to commence his shift at 7 p.m. It was a warm, clear, bright, sunny late afternoon. The plaintiff was wearing his cycling gear - shorts, shirt, gloves and helmet. He had purchased his bicycle brand-new some nine months earlier; it was a racing bike equipped with twenty-one speed gearing, two hand operated brakes, one for each wheel, dropped handlebars and a speedometer.
The plaintiff described that he travelled north along Military Road to its junction with Strathfield Terrace, then headed east toward Victoria Road, a route which would take him through the intersection of Military Road, Strathfield Terrace and Rupara Street.
Strathfield Terrace from its junction with Military Road west of the intersection runs down-hill to the area of the intersection. The slope of the incline can be seen in Exhibit D3 numbers 6, 8 and 16; the plaintiff described it as “slight” and that appears to be the case from the photographs.
Approaching the intersection from the west there is a turning lane for north bound traffic commencing some fifty metres from the intersection. The configuration of that can be seen in Exhibit D3 numbers 6 and 12. The Fort Largs Police Academy is in the north-west quadrant of the intersection; the southern and eastern boundary fences of the Academy are situated well back from the roads, separated from them by a very wide verge the extent of which can be seen in Exhibit D3 numbers 6 and 9. The verge has pine trees at intervals along the edge closest to the kerb, and the Academy side of the boundary fence has trees and shrubs close to the fence. Nevertheless the view of each of those approaching the intersection from the west and the north is not materially impeded - each can see the other’s approach beginning at least some seventy five metres from the centre of the intersection, as I would infer from Exhibit D3 number 10. Judging by the shadows of trees and other objects shown in the photographs they were taken in the morning. The collision occurred in the late afternoon when the sun would have been in the western sky. Sunset on 21st October, 1996 was at 6.36 p.m. (Exhibit D7).
The plaintiff said that as he approached the intersection he had a good view to his left. (In cross-examination he said that when he was fifty to sixty metres from the intersection he could see about the same distance into Military Road). He was travelling slightly downhill at a normal pace he judged to be twenty to thirty kilometres an hour. He saw a car travelling south along Military Road approaching the give-way sign at the intersection, the driver of which appeared to be looking in his direction and the car “slowed down as if he was about to stop at the give-way sign”. The plaintiff said he looked to his right, to the junction of Strathfield Terrace and Rupara Street “to make sure there were no cars approaching from that side of the road” then turned his attention back to the road ahead; as he did so
“...it became obvious to me that the driver wasn’t going to stop and give way to me so I immediately had my hands on the brakes and started braking and yelled to the driver as hard as I could to warn him that I was there. At that stage I had my hands fully on the brakes and was braking as hard as I could, it was fairly obvious that if I continued in the direction I was in that I was going to hit the vehicle... He started to brake and I heard his brakes start to squeal, so I just made a conscious decision that rather than hit straight onto the side of the vehicle I would rather, if anything, go over the bonnet and I basically just veered to the front of the vehicle and I suppose the accident happened there. I tried to get around him as well as I could, for whatever reason, he continued to come around the corner and that’s basically what I remember. I remember just a crash and I don’t remember anything other than that ... the thing I remember next is waking up on the road with the ambulance crew attending me” (30-32).
It is not disputed that the car with which the plaintiff collided was being driven by the defendant.
In the collision the plaintiff was pitched against and smashed the windscreen of the defendant’s car. He was taken to the Queen Elizabeth Hospital where he was resuscitated and then transferred to the Royal Adelaide Hospital where he came under the care of Mr David Hall, an Orthopaedic and Spinal Surgeon. Mr Hall, in his report dated 14th February, 1997 (Exhibit P5) records that the plaintiff had sustained multiple injuries including an inferior tear-drop fracture of the C3 vertebral body, a left frontal fractured skull with a small sub-dural haematoma, broken front teeth and a comminuted intra-articular fracture of the right big toe; a fracture of T4 was later identified.
In cross-examination the plaintiff said that having turned onto Strathfield Terrace he peddled up to speed and then coasted along toward the intersection. He said there were no vehicles ahead of him, or travelling towards him, but he thought a vehicle had been ahead of him before it turned onto the left-turn lane to travel on Military Road. He had no memory of a car, in front of the vehicle he collided with, turn from Military Road to travel west along Strathfield Terrace - his recollection is there was no other car. He said that when he was fifty to sixty metres from the intersection at the point of the “mouth” of the lane for traffic to go left from Strathfield Terrace on to Military Road he had a view of Military Road from a distance to the north of the intersection about equal to his distance west of the intersection and it was when he was in the vicinity of the mouth that he first saw the defendant’s car travelling south toward the intersection and some fifty metres from it. He said his practice was to look at the driver, he did so on this occasion and saw the driver look in the plaintiff’s direction a number of times, that the driver braked “and look almost certainly like he was going to stop”. The plaintiff frankly admitted that “events are a bit clouded” - it is his recollection the vehicle was going to stop but he did not see it stop; in his own words:
“My recollection is a bit dimmed because of the injuries I suffered. I do remember seeing the vehicle approaching the intersection. I was aware it was braking and appeared to be giving way as I travelled towards the intersection. Obviously nothing changed my mind about that assumption” (118)
The plaintiff was asked whether there was anything to prevent him seeing the car approach the intersection before he reached the “mouth” of the left turn lane; he said there were a number of trees and he may have seen the car before he reached the mouth but he “wasn’t concerned about the vehicle at all, it was a long way from where I was approaching”. He agreed that some time after the collision he spoke to a police officer and although he does not recall saying to him he was “roughly about one hundred metres from (Military Road) when I became aware of a car travelling towards Strathfield Terrace on Military Road”, he could well have said that, but he reiterated he was at about the position of the mouth when he first saw the defendant’s car, a position the distance of which from the intersection he is not sure about.
The plaintiff was taxed about where the defendant’s car was when he (the plaintiff) turned his attention from the Rupara Street and Strathfield Terrace junction - he said it was on Military Road, its front past the give-way line but not in the intersection, that it appeared to be travelling at “roughly” ten kilometres an hour and he was about ten metres distant from it travelling at about twenty kilometres an hour. He said he braked hard, yelled, veered to go around the car but the car came on and (he believed) the front wheel of his bicycle struck “somewhere around” the front wheel of the car.
It was put to the plaintiff that the defendant’s car did stop at the give-way sign - he said his recollection is that it did not stop. However, he (in my opinion with commendable frankness and honesty) agreed that it might have stopped and he does not remember it doing so.
The defendant was about nineteen years old at the time of the collision. He was an apprentice motor mechanic who had lived in the Taperoo area all his life. I infer he was familiar with the intersection. His evidence is that he was travelling at about sixty kilometres an hour along Military Road as he approached the intersection. He noticed there was a car some twenty metres ahead of him pulling up to the give-way sign, it was at the give-way sign “for a brief second” then went into the intersection. At a point thirty metres from the give-way sign, the defendant said, he braked to reduce his speed and activated his indicator to signal a right hand turn positioning his car near the centre-line of the roadway. The defendant said that nearing the give-way sign he looked to the left and to the right; he saw neither vehicles nor bicycles and in looking to the right he described that he could not see along Strathfield Terrace at all “because the sun was setting off the beach”, “It was quite bright. It blinded me. Basically sort of blurred my vision.” Reaching the give-way sign he “briefly” stopped (a couple of seconds he said) he took his foot off the brake started to accelerate, and when about one to two metres from the give-way sign he heard and felt “a crash”; he drove forward a little, stopped his car in the east-bound lane of Strathfield Terrace, got out and saw a cyclist lying unconscious on the road in the middle of that lane. He said before the “crash” he had been looking in his direction of travel, turning to the right, moving at about five kilometres an hour. In cross-examination the defendant said he had music playing quite loudly in his car, that he stopped his car at the give-way sign and after the collision he indicated to a police officer where it was he “guessed” the collision between the car and the bicycle had occurred.
The plaintiff impressed me as a witness doing his very best to relate the events of the collision as best he remembered, ready to frankly concede matters unfavourable to him whether they be movements of his machine or other vehicles, speed or distance and other things of which he had no memory or was not sure. My assessment of the plaintiff in giving his evidence was that he was a careful road user alert to what was occurring around him and on the lookout for potential hazards; a clear example of the latter is his evidence, which I accept, that as he drew close to the intersection he looked toward Rupara Street to check for the presence of any vehicle which might emerge from his right into the intersection.
The defendant knew of the existence of the sign instructing him to give way at the intersection and his obligation to do so. The configuration and the features of the intersection were such that, in my opinion, the defendant’s view to the right from a point beginning approximately fifty metres distant from the intersection became progressively better and was less impeded by trees as he neared it. His evidence is that at a distance shorter than thirty metres from the intersection he looked to the left and then the right but did not see the plaintiff on his bicycle because the position of the lowering sun so “blinded” him he could not see anything in that direction yet, not knowing whether there was any approaching traffic he set off into the intersection after pausing but briefly at the give-way sign. In my judgment he was negligent; it was incumbent upon him not to proceed until he was sure he would not be risking a collision with whatever traffic was approaching, unseen by him, from his right. The plaintiff was there to be seen by any reasonably alert and cautious driver conscious of the fact, as the defendant knew, that the lowering sun made it difficult to clearly see vehicles or other traffic coming from that direction - I reject the defendant’s evidence that the light was so blinding he could not see at all; common experience suggests that looking in the direction of the setting sun does indeed impair vision but ones eyes will adjust to the glare or one can squint to permit a clearer view. The defendant paid wholly inadequate attention to his obligation to give way.
The defendant, by his counsel, did not contest that he was negligent but urges that the plaintiff was guilty of contributory negligence in failing to ride defensively and in failing to take action to avoid the collision.
It is common ground that the defendant slowed as he approached the intersection; the defendant said he did and the plaintiff saw it to be the case. It is also common ground that the defendant looked to his right; the defendant said he did and the plaintiff related he saw the defendant look in his direction a number of times in the course of what the plaintiff observed to be the defendant’s car braking as it travelled toward the intersection. The plaintiff’s evidence is, and I accept it, that he may have first seen the defendant’s car when it was further away from the intersection than the approximately fifty metres the point at which he first focussed his attention on it and watched it slow its speed from about fifty to sixty kilometres per hour to what he estimated to be less than ten kilometres per hour.
I accept the plaintiff’s evidence that he was in the vicinity of the mouth of the left turn lane when he saw, in the sense he watched, the defendant’s car some fifty metres from the intersection. The mouth of the left turn lane is shown in a number of the photographs Exhibit D3. The plaintiff said he thought that position to be “roughly” fifty metres from the intersection. Photograph D3 number 12 (and I record that the legend, the description, forming part of that exhibit is before the court by consent) was taken at a point fifty metres west of the intersection and shows part of the mouth of the left turn lane; photograph number 13 is a view the plaintiff would have had to his front when he was at that point. The junction of Rupara Street and Strathfield Terrace can be seen on the right, a clear view into which more likely than not could not be had until the plaintiff was closer than fifty metres from it.
The plaintiff assumed from his observations that the defendant would stop and give way to him. The plaintiff’s speed as he estimated it, and I accept, was twenty to thirty kilometres an hour; at that speed he would travel fifty metres in six to nine seconds. When traversing that distance the plaintiff looked, or took his attention away, from the defendant’s car and to his right into Rupara Street. In my opinion a cyclist should be aware that he or she is not easily seen, compared to the bulk of an approaching motor vehicle, and should keep a wary eye on a vehicle that is on a course to cross the cyclist’s path. The plaintiff took his attention away from the defendant’s vehicle. Had he not done so he would have seen that vehicle move into the intersection sooner than he did and either been able to brake to a stop so avoiding the collision altogether, or at least the severity of the impact, which was sufficient to propel him off his bicycle and against the windscreen of the defendant’s vehicle, would more likely than not have been less and the extent of his injuries reduced. In my opinion the plaintiff failed to exercise sufficient care and thereby contributed to the collision and its consequences, but nevertheless the contribution of the defendant’s negligence was substantially greater than the plaintiff’s lapse of care. I apportion responsibility for the collision as to 10% against the plaintiff and 90.% against the defendant.
When he left school at aged sixteen years the plaintiff completed a four year apprenticeship as an electrical fitter and then worked as an electrical sub-contractor in Coober Pedy for about fourteen months by which time there was not much work available. He had been a member of the Emergency Fire Service for many years. He applied unsuccessfully to the Metropolitan Fire Board for a job as a fireman and then enlisted in the RAAF as a fire-fighter where he served for six years until 1987. He then worked as a storeman for a while before obtaining a position as a safety equipment and training officer with ICI Soda Ash a job he had for eighteen months before, lured by penalty rates paid for shift work as a chemical plant controller, he successfully applied for and was transferred to that classification first working a “continental” shift roster, that is eight hour shifts, and then after Penrice Soda Ash acquired the ICI business, twelve hour shifts in the rotation I mentioned earlier in these reasons.
At the time of the motor vehicle accident the plaintiff’s work was divided between manning a control room for the duration of one shift and in the next shift cleaning vents through which gas generated in the production of soda ash was carried away; also, and during the time a particular item of plant was taken off-line for the purpose, he cleaned mixing vessels and other parts. The cleaning tasks were accomplished by wielding a sledge hammer or heavy metal cleaning bars up to ten feet long to dislodge accumulated scale from the plant apparatus. The plaintiff described it to be very heavy physical work performed in close proximity to plant operating at temperatures of 160 - 200 degrees. He judged that unless he improved his physical fitness he would be unable to continue. In 1995 he had separated from his wife with whom he had lived in Morphett Vale and went to reside in Henley Beach. In 1996 he bought a bicycle to ride to and from his work at Taperoo and joined a gymnasium to improve his level of fitness, seeing that as also something that would equip him for work in the petro-chemical industry which he was considering because of the lack of opportunity for promotion at Penrice following the reduction in manning levels resulting in there being fewer shift manager positions to which he might be promoted. He was earning approximately $62,000 per annum at Penrice. He understood jobs in the petro chemical industry paid $10,000 a year more. He had been looking out for work in that industry for about twelve months before the motor vehicle accident. Some six months before the accident he was interviewed for a position of electro-mechanical process technician with BHP at a plant to be constructed in Western Australia. He said selection for the positions on offer was deferred because of construction delays and it was not until March 1998 he was offered a position. Between times the accident involving the defendant’s vehicle occurred.

The plaintiff was admitted into the Royal Adelaide Hospital Spinal Unit. He described that he was in a great deal of pain. He was told he had fractured his neck. He lost a front tooth, and fractured others, suffered facial abrasions and the other injuries set out in Mr Hall’s report (Exhibit P5). He was nursed in the Royal Adelaide Hospital during which he underwent an operation on 29th October, 1996 to reduce and internally fix with “K” wires the fracture of his right big toe. He was reviewed by neurosurgeons concerning his closed head injury but no treatment was required. When he regained head control the plaintiff was fitted with a Somi brace and mobilised. The Somi brace is an apparatus which is strapped around the chest and has an extension brace to the back of the neck to support the head. He was discharged from the Royal Adelaide Hospital on 31st October, 1996. For the first week following his discharge he lived with and was cared for by his former wife. He then went to live in his own flat. He underwent physiotherapy treatment taking panadol for pain relief. He related he had continual pain in his back between his shoulder blades, which was more troublesome than the site of the area of his fractured neck, and that the shoulder blade pain was incredibly painful when he sneezed or coughed. He was able to discard the Somi brace after six weeks and he returned to work on light duties working four hour shifts in the control room, but as I understand the evidence he wore a surgical collar until 19th December, 1996. On that date he was medically reviewed by Mr Hall to whom he complained about the intra scapular pain; x-rays revealed he had suffered “a minor compression fracture of theT4 vertebral body” (Exhibit P5). No active treatment was required - a further review was appointed for February 1997.
The plaintiff described that when he returned to work his toe was causing him some problems, he was stiff and sore in a number of areas, his neck was still quite stiff, he experienced blurred vision at times and felt dizzy and unbalanced if he quickly moved to a standing position or quickly moved his neck. He said he “had to do everything at a slightly less pace than I normally would have and just continual problems with my lower back, just continued chest pain, not being able to twist and virtually constant pain which is still with me now” (transcript 35). The plaintiff’s employer was accommodating, leaving to him to do what he felt capable of doing, a concession that continued after the plaintiff began working twelve hour shifts in about March 1997. The plaintiff related he found he could not use a sledge hammer with much effect in the plant cleaning task - it caused pain in his back - and sitting for long periods in the control room aspect of his duties he experienced constant “gnawing” pain in his back to relieve which he found it necessary to get up from his seat and move around.
Before the motor vehicle accident the plaintiff would usually take the opportunity to work overtime; on his return to work he did not do that until in about June 1997 when he resumed the full range of the duties of his job. He related that his main difficulties were not in performing the work, although it caused some pain, it was spasms of pain between his shoulder blades extending to his lower back which disrupted his sleep - he was able to cope with the physical work but the more he did the more he had trouble sleeping especially after night shifts and “this made the job very stressful and very annoying”. His fractured right toe had been “pinned”; only one of the pins remains in situ the others having worked their way out. He described that he has very little feeling in the toe.
The plaintiff anticipated that his back would improve over time, the pain would go and his strength and stamina would return but he said the pain remained (and remains) and he would sometimes sleep for only two hours between work shifts which mentally and physically drained him; he found himself “starting to fall asleep and doze and suffer mentally, not being able to maintain any sort of mental capacity to do my job” which included screen-based monitoring of the operation of the production plant and required prompt reaction to correct any problem. He said he was concerned he was not performing his job properly, and considered that he should find different work on day-shift to give his back time to recover; when the opportunity arose he applied for and obtained in February 1998 a newly created position at Penrice of Safety Adviser responsible, to the Safety Manager, for claims management, rehabilitation and the day to day running of the safety department - it was a nine to five, mainly clerical job for five days per week the salary for which was $51,000 per annum compared with about $63,000 per annum, including overtime, in the position he had left. The plaintiff said that in his new work which he enjoyed, his back pain settled considerably and he was able to sleep better. However his rate of pay was less and, judging that his recent physical and sleep problems had been due to him returning to his pre motor vehicle accident job too early, he decided to accept the job of electro- mechanical Process Technician (EMPT) at Port Headland when it was offered to him by BHP in March 1998 commencing in Western Australia in June 1998 with a period of training over five days which included rescue and fire-fighting procedures involving back-packing a breathing apparatus weighing fifteen kilograms; that, the plaintiff said, stressed his back but he completed the course, took part in commissioning the plant at Port Hedland and in September 1998 began work as an EMPT.
The role of an EMPT, the plaintiff related, was shift work and included manually opening and closing valves or gates every day, the valves being of various diameters between twenty millimetres and six hundred millimetres and the gates measured up to three metres, the latter requiring approximately three thousand manual “turns” to operate which, the plaintiff said, involved “a great deal of physical force”. For these tasks he was obliged to carry a bag containing various tools and shifting bars, the whole weighing between fifteen and twenty five kilograms, and to climb stairways to heights of fifty metres. The work of valve and gate operation, the plaintiff said, involved him in a twisting motion with his back:
“So I was constantly aggravating my back and caused myself a lot of pain. Once again my sleep, because I was causing myself more problems with my back, I was having more trouble sleeping and I was starting to struggle once again on night shift so I was starting to struggle to stay awake at times ... I started to realise that maybe I wasn’t going to be able to do the work that I originally intended” (transcript page 50)

The plaintiff said he approached his team leader and asked about a control room position, a process co-ordinator, because it would be less physical work; it was similar to the job he had had at Penrice monitoring computer screens in twelve hour shifts and directing EMPT’s to attend to check and adjust any malfunctions. He was transferred into that position in about December 1999, his rate of pay being approximately the same as that he had earned as an EMPT but, he related, because of the difficulties he had been experiencing with the physical work of an EMPT he had resigned in November 1999 from a position of Deputy Site Incident Commander, part of an emergency fire-fighting and rescue-response team which carried an incentive payment of about $5,000 per annum.

At the time of trial the plaintiff continued to be in his employment as a process co-ordinator. He said:
“The fact that I am sitting all the time and in constant pain is just very mentally draining, and the job of process co-ordinator in itself is very mentally stressful. As has already been discussed, we are dealing with gasses that are very flammable at very high temperatures and pressures... so if the operator isn’t fully mentally prepared for incidents and makes a wrong decision he can cause quite a deal of problems out in the plant” (transcript 57)

He described that he has been having trouble sleeping, he is always very tired during night shifts and worried he will not correctly respond to any problems. He said that about three weeks before trial he was feeling a bit tired after “another” sleepless night.. He incorrectly, as I understand, reset a damper on a gas turbine which resulted in the “blowing out” of a joint in the turbine exhaust causing the escape of high temperature gas, the shut down of the turbine and the loss of the electricity supply to towns in the Pilbera area. He said his response to that emergency was poor because he was “so mentally stressed” and an engineer came to assist him to “sort out” his plant. He fears that if he continues to have these problems he will be considered unsuitable for the job. No disciplinary or other adverse action, or complaint, has been taken or made against him concerning that incident.

The plaintiff said that in the past few years, except for the time he worked as a safety adviser, his back has not improved and he has been considering going back to a position of safety adviser which may become available at BHP in Port Hedland, the wage for which is approximately $60,000 per annum compared to $30,000 to $40,000 per annum elsewhere. He said that if he is not able to secure such a position with BHP he will look for a job in the occupation health and safety area elsewhere, his success in obtaining which he judges will depend upon his previous experience matching the particular position available.
The plaintiff related that his plan in taking work with BHP at Port Hedland was to use it as a “stepping stone” to develop skills in the petro-chemical industry, running and operating gas generation plant, where opportunities for advancement are good; he spoke of positions on off-shore rigs paying very high salaries of the order of $125,000 per annum. No independent evidence of such salaries was brought forward by the plaintiff, his information is anecdotal; the defendant objected to the plaintiff’s evidence on that account. I give it no weight. The plaintiff’s evidence is:
“I don’t think I can physically cope with those sort of positions. The trouble I am having with sleep, if I remained in a shift position, and that’s basically what those jobs are, I could see continued problems for sleeping and I just don’t think I can physically cope with that sort of work. It means a change in my long term plan, but its just got to happen”. (transcript 61)

However in cross-examination he said that during the first year of employment with BHP he applied for positions in the petro-chemical industry. He was not called up for an interview.

The plaintiff related that sitting down all day causes him pain which builds up during the course of his shift. He is able to get up and move about but there are times when it is necessary for him to remain seated, for up to the full length of his twelve hour shift, operating or ready to operate his touch-screen and keyboard; operating those things he said causes developing stiffness in his neck, his back then becomes sore and it is the pain in his back between his shoulder blades, where he has constant pain that affects his sleep and his ability to work in his job. He says the condition in his back also adversely affects his ability to pursue fishing from boats, golf, volley-ball and other social and sporting activities which involve twisting his back.
The plaintiff described that the injury to his toe does not now cause him too many problems and except that there are some cracks or chips to his teeth which are yet to be repaired he has no residual problems with his teeth.
A letter from BHP dated 6th September, 2000 was tendered by consent. It records that the plaintiff’s salary was $79,700 per annum as an EMPT at the time he was appointed on 25th February, 2000 to the position of process co-ordinator at a salary of $83,000 per annum. In July 2000 his salary increased to $87,500.
The plaintiff also tendered a letter from BHP dated 31st May, 2000. It concerns the payment made to members of the Emergency Response Team; it includes:
“Mr Connelly then changed positions into the control room area of the HBI Plant. This has then changed his ability to participate in the Emergency Response Team, as he must now remain on the panel during an emergency instead of responding with the team to the scene.”

That explanation is at odds with the plaintiff’s evidence. He said (in cross-examination) it is wrong. However, it was produced as part of his case. The difference causes me to be cautious in wholly relying on the plaintiff’s evidence alone of matters concerning his employment.

In cross-examination the plaintiff acknowledged he had suffered injuries in two previous road accidents when he was riding a motor bike; the first before he joined the RAAF, the second in June 1989. In the latter he hurt his hip and shoulder, but I accept his evidence that neither accident involved anything more than bruising from which he soon recovered with no long term effect.
At about the time the plaintiff separated from his wife and to the time of, and after, the motor vehicle accident in October 1996 he consulted medical practitioners about feelings of depression and upset, unhappiness and sadness because of the break-up of his marriage and its effect on his sleeping pattern. The plaintiff said that what he perceived to be his good fortune in not being killed in the motor vehicle accident made him more positive in his outlook and his depression resolved some time during 1997 to not being an issue for him. I accept his evidence.
The plaintiff also agreed that before embarking on his gymnasium activities and riding his bike to and from work with the object of improving his physical fitness he was “struggling” with the heavy plant cleaning tasks - he was extremely tired at the end of a shift experiencing aching muscles and fatigue. Asked “Did you decide to embark on a fitness programme because of changes to the shift or other changes in the plant that added to your physical work at the plant”, he said “I’d have to say that was the major reason I changed” and it was in about September 1996 he applied to BHP for work after earlier unsuccessful applications to employers at Port Stanvac and at Moomba. His application to BHP was for a position as process co-ordinator in preference to a position as an EMPT but he was informed the former positions had been filled.
I infer and find that the change at Penrice to twelve hour shifts, and the reduction in manning levels with the consequence that the plaintiff did more heavy manual work, was taking its toll on the plaintiff and although his fitness regime better equipped him to continue it is evident that before the motor vehicle accident he was intent on finding less arduous work. In April 1996 the plaintiff underwent medical investigations concerning some symptoms he had had for about one week in his kidneys or his gall bladder.
The plaintiff agreed that after he returned to work at Penrice following the motor vehicle accident he consulted his general practitioner, Dr Rogers, on several occasions in 1997 for the purpose of obtaining from him a medical certificate of drug analysis tests he was required to undergo by BHP, or the consultation was for emotional matters, but not for any matter associated with the injuries he suffered in the motor vehicle accident (141).
The plaintiff agreed that in January or February 1997 he applied for a position in occupational health and safety with Penrice. He was unsuccessful. In October 1997 he was successful in his application for the position of Safety Adviser to which he was appointed in January 1998. His selection for that post followed a panel interview in November 1997; he agreed he was probably asked at the interview if he was experiencing problems as a result of the motor vehicle accident and responded that his neck was a bit stiff and his back a bit sore but he managed and the injuries were not affecting him. He said that response was not true,. he lied; he was finding it difficult fighting his back pain, but he did not want to jeopardise obtaining the post. The plaintiff also agreed that he did not mention to any of his supervisors at Penrice that he was having difficulty carrying out his work as a process worker - he said he “tried to keep as quiet about it as possible” because he was concerned about his job, wished to keep open his options concerning a position at BHP and thought “any indication I was struggling at work would put me in a bad position. I did not want people to think I was incapable of doing my job” (160). His evidence of those matters also makes me cautious about accepting all the plaintiff’s evidence, concerning his physical symptoms in his work, as being thoroughly reliable unless there is some support from other evidence.
After he went to Western Australia in June 1998 to take up the job with BHP the plaintiff, as he agreed, did not consult any medical practitioner until April 1999 and then again in June and September 1999, when he attended the clinic of Drs Bowater and Tay, in Port Hedland. He said he complained to those doctors in June 1999 of sleeping problems and to Dr Bowater of back trouble, spasms especially when twisting, and that he had pain which was not getting any better; he was referred for physiotherapy. There is a report by Dr Tay dated 8th November, 1999 in Exhibit P8 that “Each presentation was for an exacerbation of the same pain”; attached to the report are what I infer to be clinical notes which include “problems with mid Tx back pain (on examination) tenderness about T8 region bilaterally and pain on rotation” (April 1999); in June 1999 a note of poor sleep, stiffness and soreness in the thoracic spine, restriction in rotation and “tenderness down thoracic spine”; and in September 1999 a record that the plaintiff had experienced exacerbation of pain “in the mid Tx spine after a boat trip”. The same Exhibit includes a report dated 22nd November, 1999 from Hedland Physiotherapy noting the plaintiff’s complaints of “sharpe inter scapular” (sic) pain “worse on sneezing and deep breathing, tenderness to palpitation of the spine at levels T2-T8 unilaterally and thoracic level T3 centrally”; it opines that the plaintiff “is likely to suffer periods of mid thoracic aggravation in the future likely to necessitate treatment. It is during these periods of aggravation that (the plaintiff’s) work and recreational/sporting pursuits would be most affected, particularly those involving a rotational element.”
Mr Hall gave evidence which included his two reports dated 14th February, 1997 and 26th August, 1997; the latter report followed his review of the plaintiff in July 1997 in the Spinal Disorder Clinic at the RAH. That report includes:
“Mr Connelly has made a pleasing recovery from his multiple injuries.
He does however complain of persistent mid thoracic/interscapular discomfort which is not associated with any neurological symptoms. The interscapular pain has not changed significantly in character nor intensity. In particular is does not appear to be becoming any worse.
Mr Connelly has been reassured that we would expect that the interscapular pain may slowly settle with time. If, however, he develops worsening symptoms or any neurological symptoms then he should return for review. Otherwise no arrangements have been made for review.
Mr Connelly’s condition is essentially stable.
I would assign a permanent residual physical impairment in relation to the cervical spine as a result of the C3 vertebral fracture of ten percent.
I would assign a permanent residual physical impairment in relation to the upper back and thoracic spine in relation to the T4 vertebral body fracture of ten percent.
I would assign a permanent residual physical impairment in relation to the right foot as a result of the intra-articular fracture of the right big toe of ten percent.
The impairments as described above are all entirely attributable to the motor vehicle accident which occurred on the 21st October, 1996.”

Mr Hall examined the plaintiff again shortly before trial from which his opinions remain the same.

Mr Hall’s opinion is that it is very common for a compression fracture of the thoracic spine vertebra suffered by the plaintiff to cause symptoms of pain in the interscapular region (although less common to see pain referred to the front of the chest) and for pain in that region to be heightened with rotating or twisting movements involving the thoracic area. The fracture heals, but the normal shape of the vertebrae is not restored - it is slightly wedge shaped. In his opinion, the injury having occurred four years ago the plaintiff’s condition is stable, no further interventional treatment is recommended by him but the plaintiff should care for his general aerobic fitness to stabilise the spine. He said the plaintiff did not complain to him of a stiff neck when he most recently saw him and that the plaintiff had a good range of motion in the neck.
Mr Hall’s opinion is that the plaintiff’s complaint of experiencing an increased level of discomfort in his back in sitting for extended periods of time is consistent with the injury he suffered to his spine and it is helpful, indeed recommended, that those with neck, back or chest problems alter their posture during the day.
Concerning the passage in his report dated 26th August, 1997 that he “would expect that the interscapular pain may slowly settle with time”, Mr Hall said (175):
“I still would expect - I am talking about a long period of time, over the next ten years or so I think that there would be a gradual improvement, but now its four years from the injury and, just on the balance of probabilities, the longer these things drag on, it always seems to be that there is less chance of its recovering spontaneously. Nevertheless, if I was asked to guess where he may be, and it would be a guess, I am afraid, ten years from now, I would say that the symptom would be only a minor nuisance to him. That’s only a guess.”
Mr Stephen Evans has known the plaintiff for some thirteen years. They worked the same shifts at Penrice as process technicians. He described, in much the same terms as the plaintiff had, the work done with sledge hammers and cleaning bars, and the stair climbing, in employment as a process technician. He said that before the motor vehicle accident he did not observe the plaintiff to have any physical restriction in that job. He does not remember the plaintiff undertaking any such work after the motor vehicle accident - his memory is that the plaintiff was wholly employed in the control room in performing which he observed the plaintiff to appear uncomfortable in the course of monitoring screens from a seated position for long periods of time and that he would get up from his chair, stretch and walk around. He said he saw the plaintiff do this on twelve to twenty occasions. He said the plaintiff complained of soreness, stiffness and difficulty in doing things at his work place.
Mr Evans said that since the motor vehicle accident the plaintiff has ceased playing golf and fishing with him - he and the plaintiff also worked together at BHP in Port Hedland until September 1999 and on only one occasion did the plaintiff go fishing with him.
Mr Allan Ries also worked with the plaintiff at Penrice on the same shifts. He said he did not see the plaintiff appear to have any more difficulty than anyone else in carrying out his work before the motor vehicle accident and the plaintiff would take part with him in golf and other social pursuits. After the motor vehicle accident, he said, it appeared to him that the plaintiff had to put in more effort on outside work than others and it took him longer to complete tasks.
The plaintiff suffered significant physical trauma in the collision fracturing his skull, the C3 and the T4 vertebral bodies, and the right big toe and damaging his teeth. I accept he experienced considerable pain and discomfort in the period of his hospitalisation for about ten days during which he underwent an operation to reduce the fracture of his toe. The pain and discomfort reduced over time until approximately six weeks after the motor vehicle accident when he was able to discard the Somi brace and he returned to duty at Penrice but working shorter hours and not undertaking the heavy work his duties usually required. By some time in March 1997 the plaintiff had resumed working full twelve hour shifts including carrying out, so far as he was able, the heavy manual tasks.
I find that before the motor vehicle accident the plaintiff had been finding the manual work, combined with the twelve hour shifts, arduous and notwithstanding he had embarked on increasing his physical fitness in my view he was intent on finding more congenial and less physically demanding work which saw him apply for positions like that of process co-ordinator at BHP. From the description by the plaintiff, and Messrs Evans and Ries, those aspects of the plaintiff’s job with Penrice at the time of the motor vehicle accident involving cleaning of plant required considerable and sustained physical effort. In my view, on the evidence, the plaintiff was approaching the end of a career requiring such effort. I consider that the residual ongoing affects of his motor vehicle injuries merely made it necessary for him to give up such work earlier than otherwise.
The injury to the plaintiff’s neck resolved to the point that at least twelve months before trial it had very little impact upon him; no complaints concerning the neck figure in the notes of Drs Bowater and Tay beginning in April 1999 and he did not complain of any neck symptoms to Mr Hall whom he saw just before trial. Mr Hall judged the plaintiff to have a good range of motion in the neck, although he adhered to his opinion, expressed in August 1997, that the plaintiff has a permanent residual impairment in the neck which he estimates at 10%.
I accept that the plaintiff’s most troublesome residual effect of his injuries is in the area between his shoulder blades, a consequence of the fracture to T4. I also accept the nature of the symptoms the plaintiff describes in that area as consistent with the injury to that vertebral body, but the intensity and effect of those symptoms upon his activities and particularly upon his work, or the kind of work for which but the motor vehicle accident he would have been fitted, is less clear.
The plaintiff persevered with the full duties of a process technician at Penrice from about June 1997 to February 1998 when he transferred to the job of safety adviser, a position which he found more amenable and interesting; being rid of the heavy manual component and the twelve hour shift work his symptoms, as I find, much reduced, but they returned to their former intensity when he began work in September 1998 as an EMPT with BHP, a job that involved not only the physical effort required in dealing with valves and gates but also twelve hour shifts. By April 1999 the plaintiff was seeking medical help and between then and October 1999 he, on occasion, took medication and underwent physiotherapy. Shortly after those episodes the plaintiff in about December 1999 transferred from the position of EMPT to process co-ordinator which took him out of the heavy work involved in the technician’s job and into an occupation similar to the control-room tasks he had performed at Penrice. The plaintiff has not since consulted any medical practitioners. I infer it was the twisting rotational effort involved in valve and gate work that caused the recurrence of severe symptoms in his back in 1999. That is no longer an aspect of his job and from the fact that he has not found it necessary to seek medical help I infer his symptoms are much improved.
The plaintiff’s present job, I accept, does on occasions, and not infrequently, require him to man his post, that is remain seated at his screen or near enough to continuously monitor it, for up to twelve hours. However he has, and takes, the opportunity to get up, stretch and move around to relieve what I accept to be discomfort in his back. By the time of trial the plaintiff had been performing this work for nine months or more. I accept the plaintiff’s evidence, it accords with Mr Hall’s opinion, that prolonged sitting does cause discomfort, pain, in his back. However, for some three years, less the period he worked as a safety adviser, the plaintiff, as he agreed, has worked in strenuous and less strenuous jobs on twelve hour shifts without criticism or complaint concerning his abilities or performance. In his current position he works with others under, as I understand, the supervision of a controller. If there had been any concern about the plaintiff’s performance in what he described as a very responsible job it is more likely than not the court would have heard evidence about it.
It is submitted by the defendant that the plaintiff did not adapt to the change to twelve hour shifts instituted at Penrice, the length of the shift he still works, pointing to his evidence of, inter alia, feelings of tiredness on his part before the motor vehicle accident and, on those grounds, the defendant urged that the plaintiff’s complaints of problems in sleeping are a common feature of the plaintiff’s pre and post motor vehicle accident condition. The plaintiff’s evidence is that that feature of his pre accident performance was attributable principally to his unfitness and the travails of his marriage breaking up. I do not think too much can be made of the plaintiff’s sleeplessness before the motor vehicle accident. I accept his evidence that he applied, earlier in 1996, to among others BHP for work which I infer included twelve hour shifts. However , my view of his and the other evidence as a whole is that he did not comfortably adapt to twelve hour shifts.
The plaintiff presented as a man conscientious about capably performing the various jobs he has had from time to time, intent on improving his skills and the range of them and prepared to go to remote locations where his skills are better remunerated. He has been, in my assessment of his evidence, commendably stoical about the immediate and the residual affects of his injuries. He will not likely give up a highly paid job for a lesser paid position unless the non-financial benefits of less arduous hours and more congenial work are an off-setting compensation.
In my judgment the plaintiff, before the motor vehicle accident, had reached a point in his working life where job satisfaction was an important criterion; that is not to say that a good salary was not important, I have no doubt that for the plaintiff it is but I think it is more probable than not that even absent the motor vehicle accident the plaintiff would not have continued to endure twelve hour shifts. In my opinion the intervention of the motor vehicle accident and the discomfort he has as a consequence, has brought forward the day of the decision he has made to seek employment in the field of occupational health and safety, although the extent of the acceleration cannot be identified with any precision.
The plaintiff has continued in his present responsible, taxing employment although with difficulty yet not in a degree that immediately threatens a judgment of unsuitability by those who employ him. As I have said there is no evidence that those who work with, or who supervise, him have any concerns about his competence and ability, and that being the case I consider that his own assessment of his attributes and capacities is pessimistic.
However, I accept his evidence that he suffers the pains with the consequences he described and that he has reached the point where he, reasonably in my judgment, considers he cannot persevere with his work which requires him to sit for long periods. Mr Hall’s evidence supported the plaintiff’s case that sitting for extended periods increases discomfort referable to the plaintiff’s thoracic injury.
The plaintiff called Mr Peter Stringer, a gentleman employed in, and with experience of, occupational health and safety. He identified the “hierarchy” of positions to be, in ascending order of expertise, responsibility and salary, safety adviser (or safety officer), safety co-ordinator and safety manager. He said the present salaries are, respectively, up to “the low 40,000’s”, up to $55,000 and greater than $55,000. The position of safety manager, as I understand his evidence, is held by those with post-graduate university qualifications in occupational health and safety management, their role being to identify trends, develop programmes and provide advice to senior management. Mr Stringer agreed that he had made no study of salaries but considered the figures he gave to be representative from his experience in the field. In his view salaries had not moved very much in the last few years so he agreed that the plaintiff’s salary of $51,000 in the position of safety adviser at Penrice in 1998, suggested the plaintiff was “doing very well” and he inferred (he had no knowledge of what the plaintiff’s duties were) that his role included advising management, not merely the “rudimentary” type of work carried out by a safety officer.
I accept the broad thrust of Mr Stringer’s evidence indicating the order of the salaries paid for the positions he described.
There is no evidence before the court to suggest that the plaintiff is equipped to undertake university studies in the future with a view to appointment as a safety manager. On the other hand the plaintiff, as I understand, has undertaken courses relevant to the various jobs he has had, he declared an interest in, and in bettering himself in, the occupational health and safety field, so it is likely the kind of courses offered by TAFE, or similar institutions, mentioned by Mr Stringer in the context of the position of safety co-ordinator, would be within his capacities and will be pursued as opportunities arise. The fact that the plaintiff as a safety adviser was paid at a significantly higher rate than the upper end of the range Mr Stringer spoke of indicates the plaintiff has skills and experience which make him a valuable employee; indeed he spoke of officers at Penrice holding out to him the prospect of re-employment in that position. It is also evident that the position the plaintiff seeks at BHP carries a greater salary than those mentioned by Mr Stringer.
The difference between the salary of safety adviser with BHP, approximately $60,000, and the salary of process co-ordinator with that company, $87,500, is $27,500; after tax approximately $13,750 or $264.40 per week. From the certificate (Part Exhibit P8) of Mr Mules, an actuary, it is agreed that the present value at 5% of $1 per week payable to a male of the plaintiff’s age (43 years) is $589 to age 60 years, and $680 to age 65 years.
As I have said earlier in these reasons, in my opinion it is unlikely the plaintiff would have persevered, in any event, with work until he attains 60 or 65 years involving twelve hour shifts in the rotation he presently undertakes. Further, the salary he is presently receiving reflects, I infer, that he is working in a remote location and the need to attract employees to such places. I think it not impermissible to have regard to that factor in coming to a view about the extent to which it is likely the plaintiff would have continued in his present work. Of course, the job he intends to apply for, safety adviser with BHP, is also in Port Hedland. If in the future he were to have returned to work in or near Adelaide or another city, his remuneration, whether employed as a process co-ordinator or a safety adviser, would likely have been less and his weekly loss would also have been less.
I have reflected upon Mr Hall’s evidence about the possible improvement in the plaintiff’s symptoms. He put it forward only as a “guesstimate”. I accept the plaintiff’s evidence that there has been no improvement so far. I am, therefore, not prepared to give any great weight to a prognosis expressed as a guess, but as the plaintiff’s evidence is that his symptoms were much improved when he worked as a safety adviser, and I infer that employment in other areas of occupational health and safety will effect a similar improvement, the prospect of improvement is enhanced.
If the plaintiff, absent the motor vehicle accident, would have persevered for ten years (until aged 53 years) with working twelve hour shifts in the occupation he presently has, instead of seeking out different employment in the occupational health and safety field because of the residual effect of his injuries, the present value of his impaired economic capacity is approximately $109,000. However, the plaintiff’s evidence concerning his present duties, and particularly the twelve hour shifts, leads me to the view that it is more likely than not, even absent the motor vehicle accident and its effect, he would have left that occupation or its like, sooner than ten years hence. Some allowance must also be made for the vicissitudes: see Arthur Robinson (Grafton) Ltd v Carter (1968) 122 CLR 649 at 659 per Barwick C.J.
As I have already said, in my opinion the plaintiff, prior to the motor vehicle accident, had reached the end of his working life in employment such as that he had at the time of the motor vehicle accident, and therefore no allowance should be made for a lost opportunity, as a consequences of his injuries, to take up that kind of heavy physical work. Neither do I consider there should be a component in the award for future economic impairment for disadvantage in competing for work; the plaintiff’s disability is in the area of the specific tasks involved in work of the kind he is presently doing. There is no evidence to suggest he has ongoing incapacity in other fields.
The plaintiff may continue for a further time in the job he presently has until he finds a position in the field of occupational health and safety. This is another factor which should be brought into account.
Drawing upon the several matters I have mentioned, I assess the plaintiff’s future economic impairment in the sum of $60,000.
Were the plaintiff to continue in his present employment there would be ongoing pain and discomfort which would be reflected in the position I would place him in the scale 0-60. I have assessed his future economic impairment on the footing that he will not continue in that work at least not for any extended time. In the result I fix numeral 10 on the scale for the plaintiff’s pain and suffering and loss of amenities. The multiplier is agreed to be 1520.
Past economic loss is agreed in the sum of $8,800.00. Special damages are also agreed in the sum of $12,516.84 of which all but $101.25 has been paid by the defendant.
There is no claim for voluntary services (Beck and Farrelly) and no evidence on which it is possible to make an aware for future medical expenses.
I assess the plaintiff’s damages as follows:
Non economic loss - scale number 10 $15,200.00

Past economic impairment $ 8,800.00

Future economic impairment $60,000.00

Special damages $12,516.84

The aggregate is $96,516.84. There is no claim for interest. The award is to be reduced by 10% for the plaintiff’s contributory negligence to $86,865.15. The defendant has already paid $12,415.59. There will be judgment for the plaintiff against the defendant in the sum of $74,449.56. I will hear the parties concerning costs.

[2000] SADC 156

22 December 2000