Curzons v Motor Accident Commission
[2011] SADC 103
•29 April 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
CURZONS v MOTOR ACCIDENT COMMISSION
[2011] SADC 103
Judgment of His Honour Judge Boylan
29 April 2011
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE
Plaintiff struck by vehicle driven by defendant. Main issue was whether at the time of the collision plaintiff was committing an indictable offence. This provides defendant with complete defence. Proof beyond reasonable doubt required.
Held: Plaintiff not committing indictable offence. Defendant found to be negligent. Plaintiff's damages reduced due to contributory negligence.
Civil Liability Act 1931 s.46, referred to.
Jones v Dunkel (1959) 101 CLR 298, considered.
CURZONS v MOTOR ACCIDENT COMMISSION
[2011] SADC 103
A claim for damages for personal injuries.
The plaintiff, Anthony Curzons, was a pedestrian on John Rice Avenue at Salisbury when he was struck by a car driven by Mark Boyce. He suffered serious injuries and seeks damages. Mr Curzons cannot sue Boyce because Boyce fled the scene and has not been found. He has, therefore, sued the Motor Accident Commission but the Commission claims that it is not liable to pay any damages because, at the time he suffered his injuries, Mr Curzons was committing a crime.
Overview
The accident happened at about 5 a.m. on 8 October 2004 on John Rice Avenue which is the continuation of Salisbury Highway.
Mr Curzons had spent the early hours of the morning drinking with friends at the Eureka Tavern, a hotel at Salisbury. While there, he argued with a man named Jefferson. When the two men left the hotel in separate cars each with his friends, their argument continued as they drove along Salisbury Highway. At a time when Mr Curzons was standing on the roadway, he was struck by the car driven by Boyce and suffered his injuries.
There is very little dispute about Mr Curzons’ injuries. The main dispute is whether he was committing one or other of two indictable offences – endangering life or threatening harm – at the time he suffered those injuries. If the evidence establishes beyond reasonable doubt that he was committing either offence, then the Commission is not obliged to pay damages; it has a complete defence pursuant to Section 43 of the Civil Liability Act 1936.
In my view, the defence has not been established and Mr Curzons is entitled to damages, but his damages must be reduced because he was so drunk that the law presumes he contributed to his injuries by his own negligence.
I now set out my reasons for that conclusion.
At the hotel and on the road
The events preceding the collision are important. I heard versions of them from four witnesses, but not from Mr Curzons who claims that he does not remember them.
Michael Olds was a friend and workmate of Mr Curzons. Olds spent the five or six hours before the collision drinking with Mr Curzons and their friend Jason Nuitta, but Olds drank much less than the other two men. It was Olds who drove Mr Curzons from the hotel and, at all relevant times, Mr Curzons was a passenger in Olds’s car.
While I accept Olds’s account of what happened inside the hotel, I am very wary of his account of events from the time he left the Eureka Tavern up to the time of the collision. I am wary for two reasons. First, there is no dispute that there was an incident in the car-park at the Tavern as the two groups were leaving when two men from Olds’s group approached Jefferson and apologised for Mr Curzons’ behaviour in the Tavern. Jefferson accepted the apology and the men shook hands. Olds denied that he was one of those two men. If he is right, Mr Curzons must have been one of the two. I do not accept that Jefferson would have readily accepted an apology from Mr Curzons. Accordingly, I reject Olds’s evidence on that topic. My second reason for being wary of his evidence is that, on his own admission, he lied to the police. I shall return to that topic. In my view, he was at some pains immediately after the accident and in his evidence to minimise his involvement in the events on the road leading up to the collision.
The other three witnesses were al called by the defendant: Paul Jefferson, Sandra Gibbens and Vin Hem. Jefferson and Mis Gibbens were both travelling in Boyce’s car and were friends of his. Only Vin Hem was independent.
As with Olds’s evidence, I am extremely wary of Jefferson’s. He readily conceded that he was very drunk and unable to remember the sequence of events. Further, I find that he, too, lied to the police both at the scene and later. Jefferson was the owner of the car which Boyce was driving (I shall refer to it as Boyce’s car). There is no doubt that police spoke to Jefferson at the scene soon after the accident and that police officers, including Constable Camlin, attended at his house a few days later and spoke to him again. On each occasion Jefferson insisted that he did not know who was driving his vehicle at the time of the accident and claimed that the police ever asked him only whether he knew where that driver could be found. It was Constable Camlin’s evidence that police officers asked him on both occasions who was driving the vehicle. I reject Jefferson’s evidence on this topic and accept that of the police officer. It is beyond belief that police officers investigating so serious an accident would not ask the owner of one of the cars who was the driver. Jefferson lied to protect Boyce.
Vin Hem, who claimed to be an eye witness, was parked in a Quix Service Station near to the scene of the accident intent upon his mobile phone. Although he was independent, I have great difficulty with much of his evidence. If he had seen the collision, as he insisted he did, he must have seen Mr Curzons on the roadway immediately before it but he did not. I think it more likely than not that Vin Hem heard the collision and paid attention to the cars on the road only upon hearing it. He has reconstructed some events.
That leaves Sandra Gibbens, a passenger in Boyce’s vehicle. As a friend of both Jefferson and Boyce she was not completely independent but she had not spent the evening with them. Between about midnight and 4.30 or 4.45 a.m. she had been in the gaming room at the Eureka Tavern. Importantly, she had drunk no alcohol and was completely sober throughout the events which she witnessed. While her terror at the events I shall shortly describe must have had some effect on her memory, I find that she is the most reliable of all those who witnessed the collision and the events leading up to it. Where other accounts differ from that of Ms Gibbens, I prefer and accept her account.
The plaintiff’s credibility
Before turning to a statement of my findings, I deal with the plaintiff’s credibility. In the witness box, Mr Curzons struck me as a credible witness. The chief attack upon his credit is based upon his claim that he was unconscious for a short time and, therefore, remembers nothing of the collision or the events leading up to it. Various doctors were asked about concussion and retrograde amnesia. An ambulance officer who attended at the scene also gave evidence. The ambulance notes and the notes from the Royal Adelaide Hospital were before me.
Did the plaintiff lose consciousness?
Two witnesses gave evidence about Mr Curzons’ condition immediately after he was struck: Hem and Olds. Hem’s evidence is not particularly helpful. All he said on the topic was that immediately after the collision he saw Curzons lying on the ground, bleeding. Olds said that, immediately after the collision, he could not see Mr Curzons until Niutta pointed to him lying in the gutter, face down. Olds thought that he was dead. Olds went first into the service station to arrange for an ambulance and two or three minutes later, back to where Curzons was lying on the road. There is no doubt that, by that time, Curzons was conscious and screaming. Indeed, he tried to get up. Nor is there any doubt that when the ambulance arrived, Curzons was conscious. He was able to speak to the ambulance officer and smoke a cigarette.
Various records note that there was no loss of consciousness and one section of the ambulance officer’s notes indicates that Curzons was able to give the ambulance officer information about the accident, including an account of his dragging himself across the road. But in an earlier section of those notes, in which there is an account of events immediately preceding the accident, there is no indication that that history was given by Curzons himself. The ambulance officer had no independent memory of who it was who gave him that information. It could have been that it was given to him by somebody other than Curzons. The medical evidence does not resolve the issue. I accept Mr Curzons’s evidence and I find that he was unconscious for a brief time after he was struck by the car driven by Boyce. I find that he is genuinely unable to recall the events preceding the collision.
Nuitta not called
The plaintiff did not call Jason Nuitta. There was no explanation for his absence: his whereabouts are known. But I draw no inference adverse to the plaintiff from his failure to call Nuitta. I should only do that if there was some ground in the evidence for my drawing an inference favourable to the defendant.1. If I were able to do that, then Nuitta’s absence may have been a ground for my being more confident about drawing such an inference. I can draw no inference favourable to the defendant. In any event, Nuitta was so drunk that I doubt he would have been any assistance to me.
1. Jones v Dunkel (1959) 101 CLR 298
Intoxication
A blood sample taken from Mr Curzons at 6.20 a.m. was analysed by Mr T.L. Scott, forensic scientist, and found to contain 0.195 per cent alcohol per 100 mls of blood. The results of the analysis were sent to Professor Jason White, pharmacologist, who prepared a report and gave evidence about the opinions he had expressed in his report. Professor White performed a “back calculation” and estimated that Mr Curzons’ blood, at the time of the collision, was between 0.208 per cent and 0.222 per cent. He also expressed his opinion about the likely affects upon Mr Curzons’ behaviour of such a concentration of alcohol.
At trial, I received de bene esse the certificate of analysis, Professor White’s report and his evidence. Later in the trial, I heard argument about admissibility of that material. In the end, I excluded all of it. I excluded the analyst’s report because Section 8(1) of Schedule 1 to the Road Traffic Act, as it then stood, rendered such evidence inadmissible in any proceedings other than proceedings for an offence against the Road Traffic Act or a driving-related offence. These are not such proceedings. I excluded Professor White’s report and evidence mainly because the report had been provided to the plaintiff very late.
After I reserved judgment, Section 8(1) was amended, the amendment to operate retrospectively, to render the results of the blood analysis admissible. I heard further argument about all of the excluded evidence. I now admit the evidence of the blood analysis.
I also admit Professor White’s evidence and his report. Now that the results of the blood analysis are in evidence, the justice of the case requires that the defendant be entitled to rely upon the presumption in Section 48 of the Civil Liability Act 1936. That section provides that where a person’s blood alcohol concentration at the time of an accident is 0.08 or more grams in 100 mls of blood then that is conclusive evidence that the person was intoxicated. Although there is plenty of evidence, apart from the results of the blood analysis, upon which I can find that Mr Curzons was very intoxicated at the time of the accident, I cannot find that his blood alcohol content was or exceeded 0.08 without relying upon Professor White’s report. Professor White was cross-examined at some length about the rates of absorption and elimination of alcohol. It is not necessary for me to make a precise finding about Mr Curzons’ blood alcohol level. I find that his blood alcohol level exceeded 0.08. That is the only purpose for which I have used Professor White’s evidence and report. I find further, on the evidence of eye witnesses and hospital records that he was extremely intoxicated at the time of the collision.
Again on the basis of the evidence of various witnesses, especially Olds and Ms Gibbens, I find that Jefferson and Nuitta were also extremely intoxicated. I find that Olds was not significantly affected by alcohol and that Boyce was unaffected by alcohol.
Findings
The following narrative of the night’s events constitute my findings generally.
Mr Curzons and his friends Michael Olds and Jason Nuitta finished their shifts at Air International at Salisbury at about 11.00 p.m. on 7 October 2004 and then went out drinking, first to a hotel at Gawler for an hour or so and then to the Eureka Tavern. Because he was driving, Olds drank little. Mr Curzons and Nuitta drank a great deal.
While Mr Curzons and his friends were at the Eureka Tavern, another group arrived: Paul Jefferson and two young women named Sarah and Reagan. Although previously strangers to each other, the two groups joined up and drank and talked together. Later in the morning, Mark Boyce, a friend of Jefferson’s, joined the party. All was well until Jefferson and Curzons began to argue about a coin trick which Boyce had demonstrated. When Jefferson went to punch Curzons, Jefferson was restrained by a security officer and removed from the hotel. Very shortly afterwards, the rest of Jefferson’s group left. Mr Curzons, Olds and Nuitta continued drinking, leaving at or near closing time and not long after the Jefferson group had left.
Sandra Gibbens had been in the gaming room from about midnight. She, too, left at about 4.30 or 4.45 a.m. intending to go home by taxi. But in the car-park, she bumped into Boyce, whom she knew. He offered her a lift home and said he was waiting for Jefferson. Jefferson, still angry, eventually joined Boyce’s group and, when two men from Curzons’ group appeared, he called out to them. Those two were Olds and Nuitta. One or other of them apologised for Curzons’ behaviour after the coin trick. The groups separated getting into separate cars. Olds drove his car with Nuitta in the front passenger seat and Curzons in the rear seat. The other group got into a car which, as I have said, Jefferson owned but which he did not drive. He threw the keys to Boyce and told Boyce to drive. When that car drove off, Boyce was at the wheel with one of the two young women next to him. Ms Gibbens was in the rear seat immediately behind Boyce, Jefferson was next to her and the other young woman was sitting in the rear passenger side. The two cars headed off towards Salisbury Highway.
I interrupt my narrative and statement of findings to describe the scene.
Salisbury Highway and its continuation, John Rice Avenue, is a major road running generally north-east to south-west but counsel at trial found it convenient to treat it as running north-south and I shall do the same in these reasons. The road comprises two carriageways, one each for north-bound and south-bound traffic. Each carriageway has two lanes. Nor far from the Eureka Tavern, Gawler Street joins Salisbury Highway at a junction controlled by traffic lights. Further north Commercial Road intersects with the Highway at the point at which it becomes John Rice Avenue. That intersection is also controlled by traffic lights. A little distance north of the Commercial Road intersection on the west side of John Rice Avenue is a Mobil Quix service station set back from the road and separated from it by a car-park and grass verge. Opposite the Quix, and in the middle of John Rice Avenue, is a traffic island. Mr Curzons was struck by Boyce’s car on the north-bound carriageway of John Rice Avenue in front of the Quix service station.
I return to the narrative. Having driven off from the hotel, both cars had to stop for a red light at the Gawler Street junction. The cars pulled up alongside each other, Boyce’s car in the right-hand lane. There, the argument which had begun at the hotel resumed. Both Nuitta and Curzons were partly out of Olds’s stationary car, yelling and screaming. Nuitta was sitting on the front passenger window sill and yelling at Boyce’s car across the roof of Olds’s car while Curzons was sitting on the edge of the rear passenger window brandishing an iron bar of some sort, probably a tyre lever or short crowbar. I shall call it a tyre lever.
When both cars stopped again at the Commercial Road intersection, Nuitta and Curzons got out of Olds’s car. Nuitta ran to the driver’s window of Boyce’s car and began to attack Boyce through the driver’s window with the tyre lever. While Nuitta was doing that, Curzons was on the roadway but I am unable to find that he was punching the rear window next to which Ms Gibbens was seated, as she at first suggested. Boyce’s window was smashed and the tyre lever ended up inside, or partly inside, Boyce’s car but it fell to the road shortly after Boyce took off and drove north to the top of the traffic island. Curzons or Nuitta picked up the tyre lever before they both went to the boot of Olds’s car and took from it items capable of being used as weapons or missiles. Once they were back in that car, Olds, too, drove north and did a U-turn at the traffic island.
Before Mr Curzons was hit, each car drove around the traffic island in front of the Quix service station at least twice. As they did so, occupants of Olds’s car were throwing objects at Boyce’s car, one of them throwing the tyre lever which ended up on or near the eastern gutter.
At a time when Boyce’s car was on the eastern side of the island and Olds’s on the western side, Jefferson jumped from Boyce’s car, through a window, and retrieved the tyre lever. Boyce drove on, south. Jefferson threw the lever at Olds’s car. Boyce’s car, meanwhile, finished another “lap” of the traffic island and slowed to a stop, or nearly to a stop, on the eastern carriageway opposite the service station to allow Jefferson to get back into the car, again through a window.
As Jefferson was getting back into Boyce’s car Olds stopped his car in the right hand lane of the north bound carriageway opposite the Quix so that the two cars were about opposite each other. Both Curzons and Nuitta got out, Curzons leaving the rear passenger door open as he ran to the western gutter of John Rice Avenue to retrieve the lever thrown by Jefferson. Nuitta also got out. While Curzons was still on the road, Boyce completed a U-turn at the southern end of the island, drove forward, fast, swerved to avoid colliding with the rear of Olds’s vehicle and struck Mr Curzons as he was about to get into Olds’s car at a point next to the open rear passenger door. Curzons was thrown to the gutter on the western side. Nuitta managed to jump back into Olds’s car a split second before the collision.
I am unable to find that Curzons was brandishing the bar or even facing Boyce’s car at any time while he was on the roadway between his getting out of Olds’s car and being struck by Boyce’s car, which drove on.
Nuitta ran to Curzons while Olds drove into the service station to summon help.
From the time the cars pulled up.at the Gawler Street junction until the collision, Curzons, Nuitta and Olds were encouraging each other to behave aggressively towards the occupants of Boyce’s car while Boyce and Jefferson were encouraging each other to behave aggressively towards the occupants of Olds’s car.
Boyce drove about 50 metres up the road before stopping the car on the verge and running from the scene. Jefferson and the two young women remained while Ms Gibbens left but returned about 45 minutes later.
An ambulance and police officers attended. Mr Curzons was taken to the hospital where the blood sample was taken at 6.20 a.m.
At the scene, police officers spoke to Olds and Jefferson. Both told lies, Olds saying that Mr Curzons was struck while hanging out of the car window to be sick and Jefferson, as I have said, telling police that he was so drunk that he did not know who had been driving his car at the time of the collision. Olds maintained his lie the following day when, at the hospital, Mr Curzons asked him what had happened.
NEGLIGENCE
Was Boyce negligent?
Boyce was sober throughout the time he spent at the Eureka Tavern and at the time of the collision. He knew that Mr Curzons, Nuitta and Jefferson were drunk. He had seen how the three men had behaved at the Tavern and during the journey up to the time of the collision: that they were all behaving very aggressively and that they had been getting out of the motor cars and remaining on the roadway. Further, as he approached the rear of Olds’s car immediately before the collision, he must have seen, at least, that the rear passenger side door of Olds’s car was open. In those circumstances he must have known that it was likely that Curzons or Niutta, or both of them, may have been on the roadway. In those circumstances, there was a significant and foreseeable risk of injury and a reasonable person would have taken precautions because there was a high probability or serious harm being caused unless precautions were taken. It was easy to take precautions by slowing down, stopping the vehicle or by driving south, away from the scene. There can be no doubt that Boyce owed a duty to other users of the road, that he breached that duty and that his driving contributed materially to the plaintiff’s injuries.
Liability
Before turning to the main argument in the case, I deal with three defences which were but faintly argued, novus actus interveniens, volenti non fit iniuria and “necessity”.
Novus actus intervenien
I reject the submission that Mr Curzons’ presence on the roadway constituted negligence on his part sufficient to constitute novus actus. As a driver, Boyce had a duty to anticipate, by his manner of driving, the behaviour of other road users including drunken road users who were behaving aggressively and even unlawfully. Boyce’s driving was the main cause of the accident.
Volenti and Necessity
The defendant pleaded as follows:
2.2The defendant says that prior to the collision there were several altercations between the plaintiff and other occupants of the vehicle in which the plaintiff was a passenger, and the occupants of the unknown driver’s vehicle. When the unknown driver’s vehicle was stationery at the service station the plaintiff exited the vehicle with a weapon. The collision occurred due to the unknown driver having to flee or avoid the plaintiff and not as a result of negligence on the part of the unknown driver. The plea of “Necessity”, contained in the last sentence of that paragraph, does not need to be dealt with further. The unknown driver, Boyce, did not have to flee or avoid Mr Curzons and could easily have avoided the collision.
2.3The plaintiff caused or created a situation of danger by acting in an aggressive and intimidating nature (sic) in which it was obvious that injury could ensue and the defendant pleads volenti non fit iniuria.
The defendant did not plead sections 36 and 37 of the Civil Liability Act 1936 which deal with voluntary assumption of risk by an injured plaintiff and I heard almost no argument from either party about the meaning of those provisions or their relationship to the presumption that an intoxicated plaintiff has been contributorily negligent, the plaintiff arguing only that the provisions do not expand the purview of the common law defence of volenti and that, in this case, the defence is a “non starter”. The defendant argued simply that the plaintiff took a “obvious” risk by getting out of Olds’s car in the knowledge that the cars had been going around the island “and so forth”.
I have found this aspect of the case troubling. I doubt that it is correct to say that sections 36 and 37 do not expand the purview of the common law.
I have considered the defence of voluntary assumption of risk in light of my findings and applied the objective test of the reasonable person. In particular, I have looked carefully at the nature and quality of the driving immediately before the collision. Ms Gibbens’s evidence, which I accept, is that, when Curzons got out of Olds’s car to retrieve the tyre lever, both cars were stationery on opposite sides of the traffic island. Although Ms Gibbens gave no evidence of the speed at which Boyce was driving immediately before and as he did his last U-turn to travel north, she had said about an earlier turn that he had to slow down to execute it. I find that he would have had to slow before executing his final U-turn.
I have also considered Olds’s evidence of what he saw and heard immediately after Boyce had done his final U-turn. Olds said that in the rear-view mirror of his own car he saw Boyce’s headlights lift up and he heard the noise of Boyce’s car revving, that the motor was “revving really high” and that there was then just “a big bang”. I accept that evidence. I find that Boyce, having driven to the southern end of the traffic island and done a U-turn, then stopped his car, revved the engine and greatly increased his speed as he drove up towards Olds’s car.
Even knowing, as he must have, that the cars had effectively been chasing each other, a reasonable person in Mr Curzons’ position would have reasonably thought that he could get across the road and retrieve the tyre lever before the other car came around the southern end of the traffic island. But for Boyce’s increased speed and aggressive driving, Mr Curzons would have made it safely back into Olds’s car. Accordingly, I am unable to find that he took an obvious risk and the defence of what has been referred to as “volenti” fails.
43—Exclusion of liability for criminal conduct
(1)Liability for damages is excluded if the court—
(a)is satisfied beyond reasonable doubt that the accident occurred while the injured person was engaged in conduct constituting an indictable offence; and
(b)is satisfied on the balance of probabilities that the injured person's conduct contributed materially to the risk of injury.
(2)However, the court may award damages despite this exclusionary principle if satisfied that—
(a)the circumstances of the particular case are exceptional; and
(b)the principle would, in the circumstances of the particular case, operate harshly and unjustly.
(3)For the purposes of subsection (1)(a), a relevant conviction or acquittal is to be accepted as conclusive evidence of guilt or innocence of the offence to which it relates.
(4)This section—
(a)applies where damages are claimed for personal injury—
(i)arising from a motor accident (whether caused intentionally or unintentionally); or
(ii)arising from an accident caused wholly or in part—
(A)by negligence; or
(B)by some other unintentional tort on the part of a person other than the injured person; or
(C)by breach of a contractual duty of care; and
(b)if an injured person dies as a result of injury arising in the manner described in paragraph (a)—applies where damages for harm resulting from the death are claimed under Part 5; and
(c) does not affect the operation of a rule of law relating to joint illegal enterprises.
The construction of Section 43(1)
Section 43(1) could have catastrophic consequences for a seriously injured plaintiff; for example, a plaintiff rendered quadriplegic in a motor vehicle accident could be left without redress. The section recognises the possibility of such serious consequences by requiring proof beyond reasonable doubt. It is almost akin to a penal provision and, accordingly, should be construed narrowly.
The word “while”, in sub-paragraph (a) requires that the relevant criminal conduct be contemporaneous with the negligent act causing the injuries. Further, the word “conduct” in both sub-paragraphs (a) and (b) must refer to the same conduct. That they do so reinforces the necessity for contemporaneity.
Such a construction accords with cases at common law where liability is excluded on the basis of the plaintiff’s illegal conduct: Gala v Preston (1990-91) 172 CLR 243 (a continuing offence of illegal use of a motor vehicle) and Hackshaw v Shaw (1984) 155 CLR 614 (a continuing offence of trespass.) Sometimes, the element of contemporaneity will cause little difficulty – as in the cases to which I have just referred. Other cases may not be so easily resolved but, in my view, the facts must, upon analysis, demonstrate such contemporaneity for the defence to succeed.
Here, on the facts as I have found them, the defence cannot succeed because that contemporaneity is missing.
The defendant pleaded that the plaintiff received his injuries while he was engaged in conduct constituting an offence against either Section 19 or Section 29 of the Criminal Law Consolidation Act (both indictable offences) either alone or in concert with Olds or Nuitta, or both. I shall deal with each of those offences separately.
Threatening Harm
In its defence, the defendant pleaded Section 19 in this way:
The plaintiff, either himself or in concert with other occupants of the plaintiff’s vehicle constituting a joint illegal enterprise, threatened to cause harm to the occupants of the unknown driver’s vehicle, intending to arouse a fear that the threat would be, or was likely to be, carried out, or was recklessly indifferent to whether such a fear was aroused, contrary to the provisions of Section 19 of the Criminal Law Consolidation Act 1935, as then in force.
The relevant parts of Section 19, as it stood at the time of the collision, read:
19 Unlawful threats
(1) …
(2) Where –
(a) a person, without lawful excuse, threatens to cause harm to the person … of another; and
(b) the person making the threat intends to arouse a fear that the threat will be, or is likely to be, carried out, or is recklessly indifferent as to whether such a fear is aroused,
that person shall be guilty of an indictable offence and liable to be imprisoned for a term not exceed 5 years.
(3) This section applies to a threat directly or indirectly communicated by words (written or spoken) or by conduct, or partially by words and partially by conduct.
A threat is a communication of an intention to do ill will and a declaration of hostile intent or menace: Carter v R (1994) 176 LSJS 112; BC9400620. Here, the defendant has not identified any particular words or conduct as constituting a threat. But counsel argued that “the continuum of the whole behaviour is the threat” (T.804 Line 16) and went on to refer to various incidents, namely, the smashing of Boyce’s window and the throwing of missiles by the occupants of Olds’s car at Boyce’s car.
That earlier conduct could only constitute a threat at the time of the collision if one could infer from it that Mr Curzons’ presence on the roadway while holding a tyre lever at the time he was hit constituted a threat to repeat the earlier behaviour. In my view, no such inference could be drawn from Mr Curzons’ behaviour on the roadway, as I have found it to have been, at the time he was struck.
To prove that Mr Curzons’ conduct at the time he was struck constituted a threat, the defendant must satisfy me beyond reasonable doubt first that, at that very time, Mr Curzons was threatening to cause harm to an occupant or occupants of Boyce’s car. I cannot be so satisfied. All that Mr Curzons was then doing was attempting to get back into Olds’s car. He was neither brandishing the tyre lever nor facing Boyce’s car. Nor was either Olds or Nuitta doing an act which could constitute a threat to implicate Mr Curzons by way of joint enterprise. Further, there remains always the reasonable possibility that, as far as Mr Curzons, Olds and Nuitta were concerned, the incident was over and they were about to drive away after having retrieved their tyre lever.
For proof of an offence against Section 19(2), I would also have to be satisfied that the required mental element had been made out, namely, that Mr Curzons intended to arouse the relevant fear or was recklessly indifferent as to whether he aroused such a fear. Applying the law as it then was, I must take into account in deciding that question, the effects of his intoxication. To be reckless, he must have adverted to the possibility of such a fear being aroused. Taking into account his actual behaviour when he was hit and his intoxication, I cannot be satisfied that he had the necessary intention or that he was reckless. Again, there is no basis for liability by way of joint enterprise.
Endangering life – Section 29
The defendant pleaded an offence against Section 29 this way:
The plaintiff, either himself or in concert with other occupants of the plaintiff’s vehicle by conduct constituting a joint enterprise, attacked the unknown driver’s vehicle with fists, metal and/or timber objects, or similar items, intending to endanger the lives of, cause grievous bodily harm to or cause harm to the occupants of the unknown driver’s vehicle, or being recklessly indifferent in relation thereto, and knowing that such conduct was likely to endanger the lives of, cause grievous bodily harm to or cause harm to the occupants of the unknown driver’s vehicle, contrary to the provisions of Section 29 of the Criminal Law Consolidation Act 1935, as then in force.
I shall not set out the relevant parts of Section 29 as the conduct pleaded was not conduct in which the plaintiff was engaged when he suffered his injuries. The pleaded conduct can refer only to an earlier incident when both cars were stationary at the Commercial Road intersection. I shall say no more about that plea.
I am not satisfied beyond reasonable doubt that the plaintiff was committing either of the offences pleaded at the time he suffered his injuries and the defence pursuant to Section 43 fails.
The discretion to award damages in any event
If I am wrong about the construction of Section 43(1) and Mr Curzons was committing an indictable offence at the relevant time, I would still exercise the discretion given to me in Section 43(2) and award damages anyway.
That section reads as follows:
43 – Exclusion of liability for criminal conduct
…
(2) However, the court may award damages despite this exclusionary principle if satisfied that –
(a)the circumstances of the particular case are exceptional; and
(b)the principle would, in the circumstances of the particular case, operate harshly and unjustly.
…
The circumstances of this case are exceptional. The plaintiff was not engaged in a joint illegal enterprise with Boyce and Boyce’s tortious act was independent of any conduct of the plaintiff. Boyce’s contribution to the collision was much greater than the plaintiff’s. Boyce could easily have avoided the collision. The operation of the exclusionary principle would operate harshly and unjustly if Mr Curzons were disentitled to any damages. What fault there was on his part can be adequately addressed in a reduction of damages for his contributory negligence.
Contributory negligence
I have found that Mr Curzons was intoxicated at t he time of the collision. Because he was intoxicated and because the defendant has alleged that he was contributorily negligent, he is presumed to have been contributorily negligent unless he can show that his self induced intoxication did not contribute to the accident.2. He has not done so. I must therefore, reduce the plaintiff’s damages by 25 per cent or more.
2. Civil Liability Act, 1931, s.46
I have compared the culpability of both the plaintiff and Boyce by assessing their degrees of departure from the standard of care of the reasonable person in possession of all the information which each of them had, or ought reasonably to have had at the time of the collision and the relative importance of the acts of each of them in causing the plaintiff’s injuries.
The plaintiff contributed to the collision by running on the roadway at a time when he must have known that Boyce was likely to drive erratically on that same section or road. That was a departure from the relevant standard of care. But Boyce was in control of a heavy motor car and must have known that the plaintiff, or one of the men in Olds’s car, may have been on the roadway, especially as the open rear door of the car must have been obvious to Boyce. His driving immediately before the accident was a gross departure from the standard of care. In my view, Boyce was at least 75 per cent liable for the collision and the plaintiff no more than 25 per cent liable. Accordingly, I shall reduce his damages by no more than the statutory minimum, namely by 25 per cent.
DAMAGES
Injuries
An ambulance officer attended at the scene and Mr Curzons was taken first to the Lyell McEwin Hospital and then to the Royal Adelaide Hospital.
There is no dispute about his physical injuries and I find the following:
Mr Curzons suffered a very serious injury to his left lower leg, including compound fractures of the tibia and fibula and loss of muscle and tissue; and damage to both knees, including cartilage loss in the right knee. There was a severe laceration to the right knee and soft tissue injury to the lower back together with multiple bruises and abrasions.
The damage to the left leg was repaired surgically by the insertion of a steel rod, bolt and screws which remain in place. The surgical repair also included skin grafting with tissue and muscle removed from the upper right thigh. As a result of the surgical repair and skin grafting, the plaintiff is left with very unsightly scarring on the left lower leg. There is a long scar on his right thigh and a scar on his right knee. The scarring to the left leg is significantly disfiguring.
I find that, in the collision, he suffered a closed head injury which resulted in concussion for a short period.
He remained in hospital for eleven days at the end of which he was discharged home. There, he was “laid up” for some 8 weeks and was cared for by his mother who moved in with Mr Curzons and his family. His partner also assisted to some extent but she had their children to look after. He was on crutches for some months and later used a walking stick for many months.
Past History
I make the following findings.
Mr Curzons was born on the 19 January 1978 and was 26 at the time of the accident. He was educated to Year 11 and completed two TAFE courses before starting work.
Until the accident, Mr Curzons was nearly always employed. Periods of unemployment were brief. He worked in various jobs as an unskilled labourer: as a production worker, as a press operator, as a machine operator in earth works. His last job before beginning work at Air International was running the wash room at Chep Pallets. He left that job because Chep was reducing his duties and his income was decreasing. From Chep he went to Air International, a company which manufactured car seats. He had been placed in that position by a labour hire firm and worked there for about 18 months before the accident. By October 2004, overtime was readily available and Mr Curzons was taking whatever overtime he was offered. He was enjoying the job and was about to be made a permanent employee.
Before the accident, Mr Curzons was in good health, a groin injury in his teenage years and occasional asthma not causing him any problems. He was fit and active, cycling for 30 minutes to and from work when the weather permitted, enjoying kicking a football and playing with his young sons. He attended to all outdoor duties, gardening and mowing the lawns. He exercised the dog. He serviced his wife’s car.
He and his then partner, Katherine Getgood, were in a happy stable relationship. They had two young sons and were planning to marry. They lived in a rented house and were coping financially.
INJURIES
Non economic loss
Mr Curzons suffered significant pain while in hospital and in the weeks after the accident. He has continued to suffer pain in his left lower leg, left ankle, both knees and right thigh. A section of the left lower leg remains numb.
The screws used to repair the left lower leg protrude causing pain if pressure is applied to them. Accordingly, he sleeps with a pillow between his legs.
The left knee is unstable. It locks up and causes pain especially when Mr Curzpns sits or stands for long periods. His left ankle tends to swell and become painful. That condition is aggravated by activity. The right knee also swells and causes pain. He is restricted in his capacity to run, bend, kneel, lift, squat, sit or stand for prolonged periods, ascend and descend stairs and walk on uneven ground. His ability to do heavy lifting is impaired. He walks with a limp which becomes worse towards the end of the day and he favours his right leg.
There will be degenerative change in both of the plaintiff’s knees and possibly in his left ankle. Those changes are likely to lead to further pain and loss of function. It is likely that he will need further surgery on his knees and possibly the removal of the metal in his left lower leg.
He has significant disfiguring scarring.
His physical injuries are permanent and disabling and will affect him for life. They have caused a great change to his life and his lifestyle. His relationship with Ms Getgood has broken down irretrievably and he has been unable to hold down a stable job or to enjoy his work. His ability to perform household and home maintenance duties is restricted.
Was there psychiatric injury?
There was a dispute about whether or not the plaintiff suffers from a psychiatric injury, namely, post traumatic stress disorder. On this topic, I prefer the evidence of Dr Kutlaca, psychiatrist, to that of Mr Paul Cummins, psychologist. In particular, I accept Dr Kutlaca’s evidence that for a diagnosis of post traumatic stress disorder the plaintiff would have had to have been aware of his exposure to the event with involved actual or threatened death or serious injury: here, of course, the collision. But, owing to his unconsciousness, he was not so aware. I also accept Dr Kutlaca’s evidence that waking in hospital and seeing and hearing of his injuries and surgery is not a sufficient stressor to meet the necessary criterion for the diagnosis. Having made those findings, I accept that Mr Curzons suffered shock when he regained consciousness and learned of his injuries and that he has suffered significant “low” periods and much upset owing to them but I am not satisfied that he suffers from post traumatic stress disorder or from any other psychiatric or psychological illness.
In respect of past pain and suffering I would assign a numerical value of 20 on the relevant scale and fix damages under this head at $35,750.00.
LOSS OF EARNING CAPACITY
Before turning to assessing damages for loss of earning capacity I set out a brief summary of the plaintiff’s work history since the accident.
Employment since the accident
Mr Curzons did not work for about two years after the accident but then began trying to find work. He has had a number of jobs, most of them fairly menial and all, of course, involving unskilled labour. He worked as a cleaner pushing a scrub machine; as a forklift and excavator driver and till operator at a recycling depot; as a welder; as a construction worker with a firm which poured concrete; and, later, as a general labourer cleaning up after tradesmen. Some of those jobs were too much for him. For example, he was unable to cope with the first cleaning job because the scrub machine was too heavy for him. Another of the jobs he found too dangerous on account of his injuries.
Mr Curzons has persisted at various jobs, has continued to look for work and will continue to do so. He has not found that easy. It is obvious from his pronounced limp that he has suffered an injury and he is regarded as a “workplace hazard”. He will continue to have difficulty finding work and will always have periods of unemployment during his working life. His employability will decrease with the years because there will be degenerative change in his knees which will further restrict his mobility and capacity.
He has made an attempt at a new career: commercial art. With a friend, he has been engaged in painting some outdoor murals. He had not, to trial, earned any income from that. He has been restricted in this work because it is difficult to kneel or squat and ladders are a problem for him.
He will be able to continue to do some housework and gardening but, owing to his injuries, his capacity to do that work will be restricted and increasingly so. Because he suffers pain in his legs when and after working, he will be less able to attend to such chores when he is lucky enough to be in employment. At such times, he will need assistance with general and outdoor duties.
Past loss of earning capacity
Mr Curzons is entitled to be compensated for a reduction in his capacity to earn income. I find that his capacity to earn income has been reduced by reason of his injury and that that reduction of earning capacity has been and will be productive of financial loss.
As I have already mentioned, the plaintiff was educated to year 11. He has no formal qualifications, in trade or otherwise. Between leaving school and the time of the motor vehicle collision, he was generally in employment albeit with short periods of unemployment. During those years he worked as a general labourer, a welder, machine operator, forklift operator and general hand. His average net income for the years 2002, 2003 and 2004 was $21, 644.
For the last year or so before the accident he worked at Air International Pty Ltd as a production worker on an assembly line. At the time of the accident he was working on the afternoon shift, 3.00 pm to 11.00 pm, earning about one hour’s overtime per day, on average. Depending upon overtime, his usual take home pay was between $700 and $850 a week.
In assessing the plaintiff’s loss of earning capacity since the accident, I have had regard to the earnings of Michael Olds, who had worked at Air International with Mr Curzons and had continued to work there up to trial. Mr Olds could not produce all of his financial records, but I accept his evidence generally about his employment and earnings.
The plaintiff and Mr Olds were both working on the assembly line up to the night before the accident. Neither of them was full time but the plaintiff was expecting to be made full time. Soon after the accident Olds was made full time but, owing to the injuries which he received in the accident, he preferred to do duties other than production line duties and worked a less remunerative shift than the afternoon shift.
I find that, but for the accident, Mr Curzons would have continued to work at Air International on the production line and he would have earned more than Mr Olds has earned in Olds’s new position.
Mr Olds is a good comparator with the plaintiff. Olds, too, was not well educated, not having passed Year 12, but, like the accused, had worked at various unskilled jobs since the time he left school.
Olds’s average income for the financial years 2004-2007 was $612 per week. His evidence was that there had been a slow down in work in 2007 and 2008 but that work had picked up again in 2009 and, by the time of trial, it was “good”. At trial, Olds’s take home pay, without overtime, was $640 per week.
I find that, but for the accident, the plaintiff would have continued to work on the production line and would have earned more than Olds. I find that his average weekly earnings during the period between the accident and trial would have been some $650. In arriving at that figure, I have borne in mind that there would have been some “ups and downs” in the availability of work and in the availability and amount of overtime.
After the accident, Mr Curzons was wholly incapacitated for work for about two years. From then on he tried to work at various fairly menial jobs. Some of them he could not cope with; at others he was terminated and, in one case, he left a job because he considered it unsafe.
Although Mr Curzons has tried to find work and has persisted at many of the jobs which he found physically demanding he has had to require his employers to make allowances for his disability. Given that requirement, it has not been easy for him to find work. As his mobility decreases he will find it harder to get work.
I accept his evidence that he has earned no money from his attempts at commercial art work.
The plaintiff’s counsel submitted that I should assess his past loss of earning capacity by calculating the difference between what he would have earned between the accident and trial and what he in fact earned. To that end he prepared the following table.
Financial Year (ending
30 June ..)Actual Net Income Income but for accident Difference Weeks Total 2005 Nil $650.00 $650.00 34⁶⁰ $22,100.00 2006 Nil $650.00 $650.00 52 $33,800.00 2007 $312.60 $650.00 $337.40 52 $17,544.80 2008 $435.02 $650.00 $214.98 52 $11,178.96 2009 $396.69 $650.00 $253.32 52 $13,172.12 2010 Nil $650.00 $650.00 12 $ 7,800.00 $105,595.88
While I have found that approach helpful, it does not allow for a realistic negative contingency. Owing to the plaintiff’s past history of changing jobs, it is likely that there would have been some brief periods of unemployment. Allowing for that negative contingency, I assess his damages for past loss of earning capacity at $90,000.
Loss of Superannuation
The plaintiff has lost the benefit of his superannuation contributions on account of the accident. Superannuation is payable under the Superannuation Guarantee Charge Act 1992 and the Superannuation Guarantee (Administration) Act 1992 at the rate of 9% of gross wages. There has been no challenge to the plaintiff’s claim for 11% of his net loss, namely, $9,900.00.
No failure to mitigate
Although the evidence is not altogether clear, I find that, since the accident, Mr Curzons has worked for about 20 months. I note the defendant’s submission that Mr Curzons has failed to mitigate his loss by not obtaining a driver’s licence. Mr Curzons has never driven a motor car and refuses to drive one now. I do not regard his decision not to obtain a driver’s licence as failure to mitigate. There no evidence that work would be available to him were he to have a driver’s licence.
Loss of future earning capacity
There is no dispute that Mr Curzon is left with a residual disability. I accept the opinion of Dr Christine Brown, Occupational Physician, and I find that Mr Curzons is fit for some work but with restrictions on frequent heavy lifting; that he is unfit for work which involves prolonged standing, squatting or kneeling, frequent or prolonged walking on uneven ground, stair climbing and running. I find that he is fit mainly for sedentary work such as operating forklifts and earthmoving equipment but that, even in those jobs, he will continue to have difficulty. I say that because I accept his evidence that, when working at Hackham Recycling he found that frequent getting into and out of the excavator caused him discomfort. He had the same experience when he had to get on and off forklifts frequently in a subsequent job at Outback Sleepers.
The various doctors who examined Mr Curzons agreed that there will be degenerative change in his knees. Again, I accept Dr Brown’s opinion and I find that there will be accelerated degenerative change in both knees within the next five to ten years and that change will, in turn, produce an increase in knee pain and an increase in Mr Curzons’ disability.
I accept Mr Curzons’ evidence that he has difficulty even with forklift driving and operating an excavating machine. I find that he will have increasing difficulty in occupations involving those activities. I find that, while Mr Curzons may obtain various jobs in the future, he will have to give some of them up upon finding that he cannot cope. I note his evidence that, when he has been working, he is in pain at the end of the day and has to massage his leg. Importantly, I find that he will find it increasingly difficult to obtain any work as the condition of his knees degenerate and that his working life will be shortened. I find that Mr Curzons’ future earning capacity has been very significantly reduced as a result of the accident, by about 70 per cent of the whole of his working life.
Mr Curzons has been in fairly consistent employment since leaving school. Although there have been some periods of unemployment before the accident, he has always sought and found work. In the period since the accident he has continued to seek work and has tried his hand, as I have mentioned, at commercial art. All of that shows persistence. I find that, on account of his persistence and enterprise, but for the accident, he would have remained in fairly steady employment until he was about 70.
In assessing his damages for future loss of earning capacity, I have borne in mind what I found would have been his earnings had he continued at Air International – some $650 per week net – and the fact that, at trial, State average weekly earnings were $1,018.60 and that the relevant actuarial multiplier to age 70 is $890.00. I have considered contingencies, including the vicissitudes of life and Mr Curzons’ history in his younger years of changing jobs and having some brief periods of unemployment. I do not think that any great reduction should be made for the latter. On the positive side, I have taken into account his persistency and ability to show some enterprise. But for the reduction for his own negligence, I would have awarded him damages for future loss of earning capacity in the sum of $450,000.00
Future Loss of Superannuation
I have assessed damages under this head by allowing the plaintiff 11 per cent of his assessed damages for future economic loss, that is, 11 per cent of $450,000. Accordingly I allow $49,500 under this heading.
Past gratuitous services
The plaintiff is entitled to recover the reasonable costs of gratuitous services created by the accident. Damages under this heading are to be assessed at a commercial rate. Market place services cannot be obtained on the basis of award rates. According, I assess the relevant market rate as being $33.27 per hour.3.
3. See Exhibit P24 and P22
There is no doubt that, for the first eight weeks after the accident, the plaintiff was wholly dependent upon his mother for care and domestic assistance. Pursuant to section 58 of the Civil Liability Act 1936 he is entitled to recover damages up to an a maximum of State average weekly earnings for services rendered by his mother for those eight weeks. He is, therefore, entitled to a total of $8,148.80. In respect of the assistance lent by Ms Getgood, I allow 10 hours per week at $33.27 an hour for eight weeks, making a total of $2,661.60.
After the first eight weeks of his recovery period, the plaintiff continued to receive help from his partner, while they remained together, and, later, from his mother. His need for such help decreased over time. Bearing in mind the hourly rate of $33.27, I allow the sum of $8,500 under this head.
Future services
Ms Fotiadis, Occupational Therapist, assessed the plaintiff’s need for future services and prepared reports about those needs. While her reports were in evidence, Ms Fotiadis was not called and, therefore, was not cross-examined. I have taken into account her recommendations but some of the items for which she has made allowance are, on the plaintiff’s and his mother’s evidence, within his capacity: for example, washing and vacuuming. Further, the fact that he has been able to work at jobs such as cleaning building sites, is some evidence of his capacity to attend to domestic duties. As I have mentioned, he was able to do some house painting, although he needed assistance with parts of it. Against those matters, though, there is no doubt that his condition will degenerate with time and he will become less able to attend to domestic duties. I have no doubt that, even now, were he living independently, he would require assistance with outdoor duties. I allow a sum of $50,000 for future services.
Outstanding special damages
These have been agreed at $10,594.62.
Future treatment and medical expenses
There is no dispute that the plaintiff will have ongoing costs for future treatment and medical expenses for analgesics, visits to his general practitioner and for physiotherapy and massage. The plaintiff submitted that I should allow $1.62 per week for medication, $13.85 for physiotherapy and massage and $1.38 per week for an annual visit to the plaintiff’s general practitioner and then apply the relevant multiplier, 975. I find that such items will be reasonable recurring costs and I allow a sum of $16,500 under this head.
There remains, on the medical evidence, the possibility of further surgery: arthroscopy, removal of metal rods and pins from the plaintiff’s left leg, and possibly reconstructive surgery. Dr Magasdi, who gave evidence about these matters, emphasised that it is impossible to predict whether or not the plaintiff will require all of any of these procedures. I must allow for the possibility that he will do so. I received evidence that the likely costs range between $9,600 and $11,300. Taking into account the chance only that he will require future surgery, I allow a sum of $5,000.
Interest
The plaintiff is entitled to interest on the components of past economic loss, past superannuation entitlements, past gratuitous services and unpaid special damages. I have taken a broad-axe approach and applied an interest rate of 6.5 per cent per annum progressively over the period to judgment. I award the sum of $25,000 by way of interest.
Summary
Subject to the deduction for Mr Curzons’ own negligence, I would have awarded him damages as follows:
Non-economic loss $35,750.00
Past loss of earning capacity $90,000.00
Past superannuation entitlements $ 9,900.00
Future loss of earning capacity $450,000.00
Future superannuation entitlements $49,500.00
Past gratuitous services $19,310.40
Future gratuitous services $50,000.00
Outstanding special damages $10,594.62
Future medical treatment $16,500.00
Future surgery $ 5,000.00
Interest $25,000.00$761,555.02
From this total I deduct 25 per cent on account of the plaintiff’s contributory negligence. There will be judgment for the plaintiff in the sum of $571,166.27.
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