| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : FITZGERALD -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA & ANOR [2004] WADC 163 CORAM : COMMISSIONER GREAVES HEARD : 10 & 12 MAY 2004 DELIVERED : 30 JULY 2004 FILE NO/S : CIV 996 of 2003 BETWEEN : THOMAS ANTHONY FITZGERALD Plaintiff
AND
INSURANCE COMMISSION OF WESTERN AUSTRALIA
First Defendant
ELTON FREDRICK COLE
Second Defendant
Catchwords: Negligence - Motor vehicle accident - Unidentified driver - Careful scrutiny of plaintiff's evidence - No contributory negligence - Damages - Assessment - Principal injuries to left knee and ankle - Convalescence complicated by deep vein thrombosis - Injuries affecting sleep, work, domestic and social activities - Plaintiff aged 59 at date of accident - Disabilities likely to continue for foreseeable future if not permanently - Nonpecuniary loss assessed as 20 per cent of a most extreme case ($49,100) - Past and future pecuniary loss $98,031 - Total award $147,131.
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Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result: Judgment for the plaintiff in the sum of $147,131 Representation:
Counsel:
Plaintiff : Mr J G Staude
First Defendant : Ms B A Mangan
Second Defendant : Ms B A Mangan
Solicitors:
Plaintiff : Maughan & Leach
First Defendant : Phillips Fox
Second Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Husher v Husher (1999) 197 CLR 138
Westlake v Motor Vehicle Insurance Trust [1960] WAR 83
Case(s) also cited:
The Motor Vehicle Insurance Trust v Tretjak, unreported; FCt SCt of WA; Library No 7596; BC8901143; 13 April 1989
Blum v Motor Vehicle Insurance Trust [1966] WAR 121
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Nominal Defendant (NSW) v Puglisi (1984) 1 MVR 460
Nominal Defendant v RowlandSmith [2003] NSWCA 65
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1 COMMISSIONER GREAVES: By his re-amended statement of claim, the plaintiff alleges that on 28 February 2002 he was driving his Toyota Hi-Ace in a north easterly direction along Geddes Street, Victoria Park towards its intersection with Hordern Street. He alleges that at the same time an unidentified driver was driving an unidentified vehicle in a south westerly direction along Geddes Street towards him. He alleges that at the same time a Mitsubishi truck was parked on Geddes Street, parallel with the kerb, facing north east. He alleges that the unidentified vehicle moved to the incorrect side of Geddes Street, forcing the plaintiff to take evasive action by swerving left, and as a result the plaintiff collided with the Mitsubishi truck. The plaintiff alleges the accident was caused by the negligence of the unidentified driver, as a result of which he suffered pain, loss and damage.
2 By their substituted defence, the first and second defendants deny liability. They admit the Mitsubishi truck was parked as alleged, and that the plaintiff collided with the truck. They admit that the plaintiff was injured and allege that his injuries, loss and damage were caused by or contributed to by the negligence of the plaintiff. 3 The onus is on the plaintiff to establish on the balance of probabilities that the accident was caused by the negligence of the unidentified driver or the second defendant. There is no evidence of negligence on the part of the second defendant. If the court finds the unidentified driver was negligent, it is then necessary to determine whether the plaintiff's accident was caused or contributed to by the plaintiff's own negligence. 4 The plaintiff gave evidence he was aged 59 at the time of the accident. He had been employed for 20 years as a self-employed carrier delivering newspaper "bulks" for West Australian Newspapers and others to distribution points and retail outlets. He described the set routine he followed six nights a week after picking up a load of some 500 newspapers in Herdsman. He said he regularly travelled a distance of 241 kilometres each night. On 28 February 2002, he left Herdsman at approximately 9.00 pm. By the time he reached Geddes Street, Victoria Park, the plaintiff said he had delivered some 140 newspapers. He said he had travelled the route he described including that along Geddes Street, over 3000 times. He said he was proceeding along Geddes Street from Berwick Street. He stopped at the stop sign at the intersection of Washington Street. The plaintiff continued (T26):
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"Were there any vehicles that you saw that you had to give way to? ---No, no. No vehicles at all. There was no traffic whatsoever. I remember leaving the compulsory stop and there was two vehicles parked on my left-hand side, one of which was a taxi and ahead on the right-hand side there was five or six cars but they were parked very closely together. They were a fair way further on. There was the lights in the distance of an oncoming vehicle coming towards me. When you left the corner of the intersection of Washington Street, you left from a stationary position?---Yes, after the compulsory stop, yes. What sort of transmission does your vehicle have?---It was a five-speed manual 2.8 diesel. In what gear did you proceed through the intersection and into the next block of Geddes Street?---Well, I would only be in approximately third gear when I was just about level with the first of those five cars on the right-hand side when – I would be doing approximately 45 I suppose. I definitely wasn't speeding. This other vehicle, this oncoming vehicle, just swerved onto my side of the road giving me no option but to try and get out of his road and I just swerved left and the passenger side of my vehicle collided with the back of the truck. I never even saw the truck as I was watching this other car and trying to avoid it. It would have been a head-on smash and I may not be sitting here. 5 The plaintiff went on the describe the circumstances of the collision (T28): "Can you describe the circumstances in which you collided with the parked vehicle, what you can recall of that?---Yes. Well, I was watching the other car so I saw that zip past me and the next thing I know is that I was buried in the back of the truck. I remember my mobile phone, which was velcroed onto the dashboard of my van had a long lead from the cigarette lighter to that velcro, I remember that zipping past my head and I remember my head hitting the sun visor and breaking my glasses. I don't remember my leg hitting the gear lever and breaking my leg but I remember I couldn't move my foot. I was trapped by my foot. My left foot was crushed up underneath
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the – between the front of the van and the floorboards I suppose. My seat broke off at the base and I _ this other foot, I think this foot was still on the accelerator when I hit the truck." 6 In cross-examination, the plaintiff confirmed the accident happened very suddenly, in a "split second". (T60). The plaintiff confirmed approximately half the width of his van hit the rear of the truck. The left passenger side of the van hit the rear of the truck. The plaintiff was shown exhibit 4 and his depiction of the damage to his vehicle at par 45. His evidence was consistent with the description of that damage at par 46 "severe front left possible write off". The plaintiff was referred to par 48 of exhibit 4, and his account of the accident made on 8 March 2003. The plaintiff agreed he then made no statement about the unidentified car veering towards him and added "… but it was on my side of the road – on my half" (T66). The plaintiff denied he was driving down the middle of Geddes Street and said he was still on his side of the road (T67). The plaintiff said he did not have time to look to the left before he pulled to the left, because he was watching the oncoming car (T68). A little later, the plaintiff continued: "There was heaps of room … for us to pass adequately … if he hadn't veered over." 7 Counsel for the defendants then put the following proposition to him (T71): "If you were keeping a proper lookout, the headlights on your car would have illuminated the rear of the truck and you would have seen it?---As I said before, I didn't have to worry what was on my left. I knew where I was on the road. I was on my side of the road with enough room to pass 20 trucks if they were over there. I was watching this other guy and all of a sudden he came straight at me. I was watching him. I was trying to avoid him. THE COMMISSIONER: What do you mean, 'All of a sudden he came straight at me?' Can you describe what it was that occurred?---Your Honour, I think that he didn't see - - - No, what it was that you saw?---What I saw. Right. Well, he pulled out on the line that he was on, I think – this is only - going I mean, it's two and a half years ago. As accurately as I can tell you, he pulled out to pass the last of those five or six cars and never straightened up. That's what I think."
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8 Thereafter the plaintiff said he did not move to the left to give more space to the oncoming vehicle "… because I was on my side of the road. There was plenty of room for him to get past me." (T72)
9 Counsel for the defendants submitted that the court must approach the evidence of the plaintiff with "careful scrutiny" in accordance with the judgment of Virtue J in Westlake's case: Westlake v Motor Vehicle Insurance Trust [1960] WAR 83 at 86 – 87: "I have no doubt that prudence and common sense require that evidence adduced by a plaintiff who is alleging negligence against the driver of an unidentified vehicle should be scrutinized with particular care, at any rate when corroborative evidence of the existence of the vehicle in question, either by oral testimony or by the existence of physical signs of its presence at the scene is lacking, and I consider that the same careful scrutiny should be applied to the evidence where, though the presence of an unidentified vehicle on the road at the time and place of the accident is established, the only testimony as to the negligence of the driver of the vehicle is that of the plaintiff, particularly in a case such as the present where no impact with the unidentified vehicle is alleged, and where the accident could quite reasonably have happened in the way it did without the intervention of another vehicle at all." 10 Counsel for the defendants submitted the plaintiff was not a dishonest witness. She submitted the plaintiff made a terrible mistake because he did not see the truck. 11 In my opinion upon a careful scrutiny of the evidence, the court should not reach the conclusion that the plaintiff made a terrible mistake. I accept the submission of counsel for the defendants that Geddes Street is straight and there are no obstacles on the road. The truck was stationary. The plaintiff had his headlights on. In the absence of the oncoming vehicle, the only conclusion on the evidence could be that the plaintiff made a terrible mistake and did not see the truck. I accept, however, the evidence of the plaintiff that he was on his side of the road with enough room to pass 20 trucks if they were there. I accept his evidence he was watching the oncoming vehicle, which all of a sudden came straight at him. 12 Counsel for the defendants submitted that the plaintiff gave no such account of the circumstances in the report of 8 March 2003. I accept that
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the latter account is not expressed so dramatically as his evidence before the court but I also accept that both accounts describe the same events that occurred in the same split second. In my opinion, the earlier account is not inconsistent with the evidence of the plaintiff. When carefully scrutinised, the evidence of the plaintiff should lead the court to conclude on the balance of probabilities that the oncoming vehicle came straight at the plaintiff and that the plaintiff was trying to avoid it so that the left passenger side of his van hit the truck. 13 The facts as found lead me to conclude that the accident was caused by the negligence of the unidentified driver. The same facts also lead me to conclude that the accident was not caused or contributed to by the plaintiff's own negligence. As I have said, there is no evidence that the second defendant was negligent as alleged and the claim against the second defendant should be dismissed. 14 It is now necessary to consider the nature and extent of the plaintiff's injuries sustained in the accident, his pre-accident earning capacity and whether that capacity has been diminished by reason of the plaintiff's injuries and residual disabilities. It is also necessary to consider whether the plaintiff will require any and if so, what future treatment and to consider the plaintiff's claim for gratuitous services. It is then necessary to determine a reasonable award of damages, if any, under each head. 15 The plaintiff was born on 31 December 1942 and as I have already observed was aged 59 at the date of the accident. He is now 61. Since 1982 he has worked as a self-employed carrier delivering newspaper "bulks" for West Australian Newspapers and others to distribution points and retail outlets. His evidence was he continues to do this work but to a reduced extent owing to the injuries suffered in the accident. 16 The injuries were principally to the left knee and ankle/foot. The left knee required surgical treatment. The plaintiff suffered a deep vein thrombosis in hospital. He had no pre-accident history of this condition. It resulted in his being admitted, following discharge from Royal Perth Hospital, to Joondalup Health Campus for 10 days. The plaintiff also suffered a soft tissue injury to his neck which caused pain, stiffness and headaches. He suffered a chest injury and a fracture of the eighth right rib. 17 The plaintiff's principal difficulty has been and remains lifting newspaper bulks that obviously vary in weight. Likewise, some delivery locations are more easily accessible than others. In his report of
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24 February 2003, the occupational physician, Dr Chris Hammersley reports that Mr Fitzgerald presented as a large, tall man in his later middle years who exhibited some difficulty and altered rhythm in rising from his chair. He was 200 centimetres tall with shoes and weighed 124 kilograms. His walking had normal rhythm, but the left foot appeared very slightly inturned. Examination of his left knee was inhibited somewhat by complaint of distressing pain over the lateral aspect. This was difficult to locate, but it was Dr Hammersley's impression that it was close to or around the lateral screw just below the lateral tibial plateau. Left knee movements were — 25 extension (meaning it could not be straightened past 25 degrees flexion) and a maximum flexion of 125 degrees out of 140 degrees. The left leg exhibited muscle wasting while examination of the foot revealed tenderness under the metatarsal heads. Examination of the plaintiff's left leg sensibility revealed reduced altered sensation over the lateral foreleg down to the level of the lateral malleolus. Below that there was markedly impaired sensation, and then nil sensation of the lateral border of the foot. However, when re-examined with the knee fully flexed, the sensation was reported improved in the lateral border of the foot, and resembled that perceived in the lateral aspect of the foreleg. 18 Examination of the interior of the knee revealed no tibiofemoral crepitus but there was marked patellofemoral crepitus. Very slight laxity of the cruciate ligament was demonstrable, but unlikely to be significant. There was no effusion. There was considerable tenderness around the lateral fixation screw. After this examination, the plaintiff complained his left leg ached from the knee down the lateral foreleg. 19 Dr Hammersley reported there was a neuropathic disturbance of the sensibility of the lateral aspect of the lateral foreleg and lateral aspect of the foot consistent with trauma to the tibial nerve including its medial sural cutaneous branch. The calf muscle wasting still evident was also consistent with tibial nerve injury. He considered these injuries consistent with the plaintiff's difficulty in lifting and carrying heavy loads (above 18 to 20 kilograms) on uneven surfaces, up inclined surfaces or in confined spaces. He considered it was likely there would be a pattern of recurrence of give way incidents regarding his left knee and a risk of accelerated degenerative change in the left knee, ankle and foot. Dr Hammersley foresaw the plaintiff continuing to work in a partial capacity for the long term. He recommended further surgery, medication and physiotherapy.
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20 In his report of 15 March 2004, Dr Hammersley confirms the evidence of the plaintiff that the plaintiff has managed to continue deliveries with assistance and by improvisation in the management of bulks. He expressed the opinion that the plaintiff's principal accident-related problems were loss of full motion in the left knee, left knee and foreleg pain and compensatory right knee pain and irritability. The permanent leg disability consists of left knee structural change, wasting of the left thigh, left tibia rotational deformity and reduced movement at the left ankle. The nerve deficit in the left leg appeared to have largely settled and was not causing loss of function. The left foot seemed to have healed apart from residual discomfort/ache. He estimated the permanent loss of the efficient use of the left leg below the knee at 12 per cent and the permanent loss of the efficient use of the left leg at and above the knee at 30 per cent. Dr Hammersley expressed the opinion that the plaintiff is working at the limit of his capacity and may be at some increased risk of injury. The factual evidence upon which Dr Hammersley expresses his opinions is consistent with the evidence of the plaintiff before the Court. I accept that evidence and the opinions of Dr Hammersley about the nature and extent of the plaintiff's injuries and disability.
21 The plaintiff's evidence is also confirmed by the reports of Mr Kimberley and Dr La Vallete. It demonstrates that by reason of his injuries he has suffered considerable pain and distress having been hospitalised on two occasions and having to undergo a lengthy period of convalescence complicated by the deep vein thrombosis. He has required surgery, therapy and medication and will require the same in the future. He is likely to have an increased risk of arthritis in his left knee and left hip. He is affected in every aspect of his life, suffering disturbed sleep, encountering difficulties in his work, and being precluded from any domestic, recreational and social activities. Given his age, these disabilities are likely to continue for the foreseeable future if they are not permanent. Counsel for the plaintiff submitted that damages for non-pecuniary loss should be assessed in this case in the order of 20 per cent of a most extreme case. On the evidence of the plaintiff and his wife and the medical opinion contained in exhibit 5, I conclude that 20 per cent of a most extreme case is a reasonable assessment for non-pecuniary loss in this case and accordingly, the plaintiff is entitled to an award of $49,100 under this head. 22 It is clear from the evidence the plaintiff was totally incapacitated for work for three months after the accident. He then returned to work but was unable to undertake deliveries to the same extent as before the
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accident. Since the accident, the plaintiff has consequently earned less than his pre-accident income. In Husher v Husher (1999) 197 CLR 138, the High Court held that damages for loss of earning capacity should be calculated by reference to the plaintiff's capacity to earn income irrespective of whether the plaintiff chose to apply the fruits of his labour to a partnership, or, as in this case, a family trust. The financial loss occasioned by the impairment of the plaintiff's earning capacity is the loss of his ability to control and dispose of the income he would have earned had there been no accident. In any event, in the financial year prior to the accident, and since that time, the plaintiff has been the only beneficiary of the Fitzgerald Family Trust. 23 The plaintiff's claim is based on the loss of profit resulting from his need to engage other sub-contractors to perform work which he would have done had he not been injured. In 2001, the financial year preceding the year in which the accident occurred, the trust had a turnover of $70,479 from cartage and its total expenses ($29,636) included sub-contractor expenses of $9,031, leaving a net profit (before tax) of $40,843. This financial year was not typical. The plaintiff spent six weeks in New Zealand. Ordinarily, he rarely took holidays, he and his wife going away for a holiday perhaps every two years. The sub-contractor/wages figures for 1998, 1999 and 2000 confirm this. The average weekly gross income of the business in 2001 was $1,355. Accordingly, in the six weeks in which the plaintiff was in New Zealand he would have paid sub-contractors $8,132, which closely corresponds to his total sub-contractor expenses for that year ($9,031). 24 It is clear from exhibit 1 that in the year of the accident and in the following year sub-contractor expenses increased significantly. Such increases are consistent with the plaintiff's evidence that he sub-contracted all his work during his period of total incapacity, and thereafter part of his work in order to be able to cope with his disability. 25 In assessing the plaintiff's loss, it is reasonable to suppose that on average the plaintiff would have relied on sub-contractors for perhaps two weeks per year. The weekly costs would be 1/52nd of the annual turnover. In 1998 the sub-contractor expenses corresponded very closely to that proportion. In 2001, however, the sub-contractor expenses of $9,031 represented 6.6 weeks at the average weekly turnover of $1,365. In 2002 the average weekly turnover was $1,435. The plaintiff would not have incurred more than two weeks sub-contractor expenses ordinarily ($2,870) but in fact incurred $29,305, an increase of $26,435. In 2003 the average weekly turnover was $1,396 and the plaintiff would probably
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have incurred two weeks sub-contractor expenses ($2,792), and therefore incurred increased expenses of $26,334. 26 In exhibit 1 it is apparent that in each of 2002 and 2003 the Fitzgerald Family Trust incurred extra sub-contractor expenses which reduced net profit (before tax) to about $20,000. There was a corresponding diminution in the plaintiff's gross annual income as disclosed in his individual tax returns (taking into account that in 2002 his earnings were inflated by profits realised by the sale of assets). 27 The marginal rate of income tax for earnings between $21,600 and $52,000 is 30 per cent. The Medicare levy is 1.5 per cent. The evidence therefore establishes a loss of $13,700 for the financial year ended 30 June 2002 during which time the plaintiff was totally incapacitated for three months and partially incapacitated for a month thereafter. 28 In 2003 there is also an apparent diminution of gross income of the trust and the plaintiff individually of about $20,000 or $263 net per week. From 1 July 2002 to the date of trial is a period of 97 weeks. I assess the plaintiff's loss for this period, therefore, as $25,511. 29 The plaintiff is therefore entitled to an award of damages for past economic loss as follows: 28 February 2002 – 30 June 2002 $13,700 1 July 2002 – 12 May 2004 $25,511 Plus interest at 3 per cent for 2.25 years $2,350 Total $41,561 30 Turning to future economic loss, the plaintiff impressed me as self-motivated. The evidence establishes he has always been in full employment. Likewise, the evidence establishes that prior to the accident he always engaged in the maintenance of his home and property. His evidence was he had planned to continue his pre-accident employment until aged 65. Counsel for the defendants invited the court to find that prior to the accident the plaintiff had already begun to engage others to undertake an increasing number of his deliveries. She submitted that the court should conclude from distributions made to the plaintiff's stepson that this was so. I do not accept that submission. On balance the evidence of the plaintiff satisfies me that he would have continued his level of pre-accident employment until aged 65 but for the accident. Given the nature of the plaintiff's injuries and disability, and his age, I accept the submission of counsel for the plaintiff that it is reasonable to conclude the
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plaintiff will continue to lose $20,000 gross income a year or $13,700 net ($263 per week net). To that, I apply the multiplier of 186.2, resulting in an award under this head of $48,970. 31 The plaintiff claims damages for past and future gratuitous services. I accept the evidence of the plaintiff and his wife that after his discharge from Royal Perth Hospital, the plaintiff required continual care and likewise to a lesser extent after he was discharged from the Joondalup Health Campus. Counsel for the plaintiff submitted that since the end of May 2002 the plaintiff has required domestic assistance which goes beyond rearrangement of domestic duties. In my opinion the evidence of the plaintiff and his wife does not establish that this is so on the balance of probabilities either in the past or the future, notwithstanding the nature of his injuries and disabilities established by the evidence. That evidence, therefore, does not establish the plaintiff's claim above the statutory threshold in s 3D(6) of the Motor Vehicle (Third Party Insurance) Act 1943. 32 In relation to future treatment, damages under this head should be assessed globally. Arthroscopy and removal of the screws in the left knee is recommended, as is ongoing physiotherapy. The plaintiff is taking Mobic and Panadeine Forte and on the evidence in my view is likely to continue to do so in the foreseeable future. On the evidence, I assess the plaintiff's loss under this head as $7,500. 33 I was told there was no need to provide for special damages in this assessment. Accordingly, the plaintiff is entitled to the following award: Non-pecuniary loss $49,100.00 Past loss of earning capacity and interest $41,561.00 Future loss of earning capacity $48,970.00 Future medical expenses $7,500.00 Total $147,131.00 34 There will be judgment for the plaintiff against the first defendant accordingly.
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