Hannan v MacLean
[1989] TASSC 30
•7 July 1989
Serial No 24/1989
List "A"
CITATION: Hannan v MacLean [1989] TASSC 30; A24/1989
PARTIES: HANNAN
v
MACLEAN
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 2007/1981
DELIVERED ON: 7 July 1989
JUDGMENT OF: Wright J
Judgment Number: A24/1989
Number of paragraphs: 49
Serial No 24/1989
List "A"
File No 2007/1981
HANNAN v MacLEAN
REASONS FOR JUDGMENT WRIGHT J
7 July 1989
This is an action for damages arising out of a motor vehicle accident which occurred on 17 March 1980 at the intersection of Anglesea and Adelaide Streets, South Hobart. The plaintiff presently aged 34 years, was driving his Renault sedan, in a general northerly direction, along Anglesea Street from Davey Street towards Macquarie Street. The original defendant, now deceased, was driving a Falcon taxi in a general easterly direction, along Adelaide Street towards the city.
The front of the plaintiff's vehicle collided with the driver's side of the defendant's vehicle, just behind the central door pillar. The taxi continued across the intersection, mounted the footpath, and its rear collided with the brick fence of the house on the north east corner of the intersection. The taxi was carrying a passenger at the time, but that person did not give evidence at the trial which took place in Hobart in February and March 1989.
The only eye witness to give evidence was the plaintiff himself. Despite the passage of nine years between the date of the accident and his sojourn in the witness box, I see no reason to doubt the essential veracity of his evidence concerning the occurrence of the collision and its immediate aftermath, nor do I regard the evidence of Professor Joubert, Professor of Mechanical Engineering at the University of Melbourne as impeaching the essential credibility of the plaintiff in his assessment of the relative speeds of the two vehicles, although as will appear hereafter I have some reservations concerning the actual speeds which he estimated.
On the date of the accident, the plaintiff was employed as a resident medical officer at the Royal Hobart Hospital. He was due to start work in the casualty department at 9.am, although it was usual practice for resident medical officers to meet and discuss case loads for between 15 and 30 minutes prior to the scheduled starting time. The plaintiff left his home in Davey Street at about 8.10am, and the accident occurred within half a kilometre of his residence. It was suggested that he was late for work but there is no substance to this suggestion, in my opinion. There is no reason to conclude that he was in a hurry or was speeding at the time of the accident.
Between Davey and Macquarie Streets, Anglesea Street has a downhill slope. The plaintiff was familiar with the intersection between Anglesea and Adelaide Streets, having traversed that portion of road many times. On approaching the intersection, he looked to the right, with a view to giving way to any oncoming traffic on his right hand side. He had a good, unobstructed view in that direction, and saw no vehicles coming. On the corner to his left, his view was somewhat obscured by the verandah of a house which extended virtually to the footpath line of the street; furthermore, Adelaide Street joins Anglesea Street at this point at something more than a right angle, running slightly towards Davey Street. Neither Anglesea nor Adelaide Street is a right of way street, and consequently, the normal give way to the right rule applies.
The plaintiff says that his speed approaching the intersection, was approximately 40 kilometres an hour. He also says that he had his right foot on the brake as he approached the intersection, but I have some doubt as to whether he actually recalls doing this. The plaintiff said at the point at which he could first see to his left, he saw the Falcon taxi approaching from that side at a fast speed, which he estimated at between 70 and 80 kilometres an hour.
The driver was looking straight ahead, or perhaps slightly to the left and appeared to be talking. He was slumped in his seat with his right arm protruding out the window. It is plain from the plaintiff's description that the taxi driver failed to see the Renault until virtually the moment of impact and the taxi did not slow down or take evasive action to avoid the plaintiff's vehicle.
The plaintiff applied his brakes and steered left with a view to going around the rear of the taxi but he was unable to say whether or not his vehicle deviated from its original course before the collision occurred. The plaintiff says that his vehicle was approximately 8 metres from the point of collision and the taxi was approximately 15 to 20 metres from the point of collision when he first observed the taxi approaching. The plaintiff estimates that his speed had reduced to approximately 20 kilometres per hour at the moment of impact. His vehicle was swung violently to the right and came to rest at right angles to its original direction of travel, after the accident. The plaintiff says that he saw skid marks on the road following the accident which he assumed were made by the front wheels of his vehicle and which were consistent with the description of its movements just given.
The only immediately apparent injury that the plaintiff sustained was minor damage to the right knee, caused by the knee striking the ignition key at the moment of impact. The plaintiff saw no skid marks left by the other vehicle and he angrily upbraided the driver of the taxi for having caused the accident. The taxi driver did not deny his own culpability and did not attempt to blame the plaintiff. Professor Joubert who was called as a defence witness, basing his opinion inter alia upon physical laws of motion and conservation of energy, suggested that the two vehicles were travelling at approximately the same speed at the time of the accident or, if the Falcon was the heavier vehicle, he suggested that it was travelling more slowly than the Renault. I find this opinion unconvincing and unacceptable for a number of reasons. Professor Joubert was obviously unaware of the nature of the damage to each vehicle. His views failed to take account of the fact that the Renault ran in to the side of the Falcon. He assumed, erroneously on the evidence, that both vehicles continued after the accident, on a trajectory deviating approximately 45o from their original course. He also failed to take into account the fact that the Falcon spun around so that its rear collided with the fence.
This does not mean, of course, that I give unqualified acceptance to the plaintiff's version of events. He only had a fleeting instant in which to appreciate the speed of the other vehicle and I think he may well have over estimated its speed. Indeed, and here I agree with Professor Joubert, one would have expected the taxi to continue much further down Adelaide Street before coming to rest after the collision, particularly as the driver was apparently oblivious to the plaintiff's approach, if its speed was in the order of 80 kilometres an hour. However, I have the impression that the plaintiff did something less than justice to his own case in claiming that he was travelling at a speed of 40 kilometres per hour just prior to entering the intersection. He stated, and I have no reason to disbelieve him, that he was travelling at a speed at which he could have stopped and given way to vehicles approaching from the right, had it been necessary for him to do so; and if, as he claims, his speed reduced to 20 kilometres an hour by the time the impact occurred, it suggests that his capacity to react and effectively apply the brakes was much more rapid than I would have expected for the average driver in the distance available. Bearing in mind the relative positions of the vehicles following the accident, the state of the weather, the nature of the road, and all the other physical features adverted to in the evidence, I would be most surprised if the plaintiff's speed exceeded 30 kilometres an hour and the defendant's exceeded 60 kilometres an hour as they each entered the intersection.
Plainly enough however, the defendant's negligence was causative of the accident. He was failing to keep a proper lookout, he was driving at what was an excessive speed in the circumstances and he failed to swerve, brake or manoeuvre so as to avoid the collision. Most importantly of all however, he failed to yield right of way to the plaintiff's vehicle which was approaching from his right hand side.
Relying upon Sibley v Kais (1967) 118 CLR 424, and like decisions, the defendant contended that the plaintiff was contributorily negligent and consequently his damages should be reduced. Reliance was placed upon the oft quoted judgment of the court in Sibley v Kais (supra) at p427 as follows:
"The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to 'reasonable care' is, of course, a question of fact, but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected."
A literal application of this principle to all intersection collisions would require a finding that the driver on the left is always at least partly responsible, but I think it plain from the initial caution by their Honours that "what amounts to reasonable care is of course a question of fact" indicates that such is not necessarily the case. See for example, Bradbury v Henschall (1987) 5 MVR 248. It must always be remembered that the primary obligation of any driver at an uncontrolled intersection is to give way to his right and consistently with this duty, it is in that direction that his attention must be focused as he approaches the intersection. The more easily he can see to the right, the more rapidly he can look to the left. If his view to the right is obstructed, he must slow down, virtually to a stop if necessary, in order to discharge his fundamental duty if a vehicle appears unexpectedly from that quarter. The plaintiff in the present case had a relatively unobstructed view to the right, and as soon as he diverted his attention to the left he became aware of the defendant's vehicle being driven at an imprudently high speed towards the intersection. It was plain that the driver did not see him and was unlikely to stop and give way. Had he been travelling more slowly than he was, (and I think slow speeds at this type of suburban intersection cannot be said to unduly impede the free flow of traffic) I think the plaintiff may well have avoided the collision. By failing to take this precaution I think that he was negligent. However, compared with the defendant's negligence, I think the plaintiff's contribution was minimal. I assess it at 10%, a figure which in my opinion, takes account of the degree of the plaintiff's departure from the standard of care of the reasonably prudent driver in the circumstances, the degree to which his negligence contributed to the causing of the collision, and the relative culpability of the two drivers, (see Pennington v Norris (1956) 96 CLR 10, and Smith v McIntyre [1958] Tas SR 36).
The defendant also alleges contributory negligence by the plaintiff in failing to wear a seat belt at the time of the collision. The plaintiff's vehicle was in fact fitted with seat belts which, whilst adjustable were not of the inertia reel type which allow more freedom of movement to the wearer. It was the practice of the plaintiff to wear the seat belt fitted to the driver's seat on long journeys, but not upon short trips such as the one which he was undertaking when the accident occurred. The seat belts had not been fitted as original equipment to the car and the plaintiff found that when the belt was buckled up, he was unable to reach the hand brake which he was in the practice of using when starting the car on an upward incline. As one would expect of him being a medical practitioner, he was aware that generally speaking, the use of a seat belt was likely to prevent or minimise injuries sustained in a motor vehicle accident. As already mentioned the plaintiff sustained a minor injury to his right knee as a result of the collision, and although he claims to have no current memory of it, I find that he also sustained bruising of the forehead. This finding is based upon what he told Mr Crock and Mr Buzzard when he was examined by them. This however, was a minor lesion and there is nothing in the evidence pertaining to either the knee or the forehead injury which persuades me that they resulted from a heavy impact between the plaintiff's body and some interior part of the vehicle.
The plaintiff's major injury, which did not become seriously disabling until some time after the accident, consisted of a crush fracture of the first lumbar vertebrae. The probable mechanism producing such injury was described in the evidence of Dr Ganora in the following terms:
"The lumbar vertebrae fracture is usually with a compression anteriorly because of forces which force the spine in deflection anteriorly with the combination of rotation so there is an angulation of the vertebral column forward with or without rotation ... it's usually not the whole of the torso that goes forward I mean if the whole of the torso goes forward then the angulation occurs at the hips and that may protect injury to the spine so there has to be a fulcrum within the spine within the length of the spine itself ... with a sudden obstacle in front of the vehicle the entire body goes forward it will either go forward without flexion or flexion might occur the head may flex because the head is a mobile segment it may extend and then go forward the momentum and forward inertia of the head flexes the thoracic and cervical spine."
Mr HV Crock was asked what happens to the human body in circumstances where a vehicle which is travelling ahead suddenly comes to a halt. He replied:
"Well then the body will be projected along the course of the main direction of travel and in particular it would then move forward and because of the weight of the patient's head the spine would go into an acute flexed position".
In considering whether the plaintiff's spinal injury would probably have been diminished or prevented if he was wearing a seat belt, it is necessary to remind oneself that the type of belt fitted was of a lapsash configuration. The main points of restraint therefore are on the right shoulder diagonally across the torso towards the left hip and across the front of the pelvis. It is readily appreciated therefore, that in a head on collision the greater part of the body is restrained from forward motion, but in a collision of the kind the subject of this action, bearing in mind that the plaintiff's vehicle ran into the side of the defendant's car and was slewed almost at right angles to its original trajectory, the momentum of the plaintiff's body would be towards the left hand side screen pillar, rather than straight ahead. Immediately following the passage quoted above, Dr Ganora's evidence continued as follows:
"QThis is when you get the whiplash type of injury when somebody is held in by a seat belt?
AYes, well with a seat belt injury occurs usually at the level of the belt or higher without a seat belt it can occur at a lower level.
QAnd with a seat belt you wouldn't have expected an L1 type fracture that you've described?
AOh you could. The seat belt unless it's a harness belt which pins both shoulders back there will be angulation along the axis of the strap of the belt so that one shoulder will go forward and down thereby inducing a flexion moment and potentially resulting in bone or soft tissue injury.
QThe general proposition of course is the wearing of a seat belt will reduce such injuries as a fracture at L1 particularly lapsash type belt?
AI'm not aware of any scientific studies which specifically ask the question whether seat belts reduce the incidence of fractures of the body of L1 in particular but I am aware of studies that show that there are certain fractures of the thoraco lumbar region which are a result of wearing seat belts and these are being described increasingly now so a seat belt does not immunise against spinal fracture."
Professor Joubert, who has had considerable experience in motor vehicle accidents and the role played by seat belts in the prevention of injury agreed with Dr Ganora's statement. However it was plain from Professor Joubert's evidence that he had substantially misconceived the mechanical and physical processes which had probably been involved in the production of the spinal injury in the present case. In the first place, he assumed that the crush or compression fracture had probably resulted from the blow to the plaintiff's head, causing the bruise which has already been mentioned. Furthermore, he plainly misconceived the twisting motion in the spinal column (described by Dr Ganora as a rotational movement) and thought this described the process which medical practitioners normally refer to as flexion. It should be recorded, although reluctantly, that I found Professor Joubert's evidence less than impressive, both in relation to the speed of the vehicles which I have already mentioned, and also in relation to the seat belt issue. The evidence does not persuade me that the plaintiff's major injury would have been lessened or avoided by the wearing of a seat belt. Indeed, on the whole of the evidence I have reached an affirmative conclusion to the contrary.
In early cases where the allegation of contributory negligence was raised against a plaintiff who failed to wear a seat belt, it was viewed by eminent jurists with some suspicion. See for example, Bray CJ in Rust v Needham (1974) 9 SASR 510 at p523 where he said:
"I confess that a kind of contributory negligence which did not contribute to the event which caused the plaintiff injury or to the occurrence of some injury to him, but only to the extent of that injury, appears to me to be a novel species of contributory negligence and one difficult to fit into the genus as traditionally defined."
See also Hancock v Commercial Union Assurance Co of Australia Ltd (1974) 10 SASR 185, Grantham v South Australia (1975) 12 SASR 74, and Taggart v Rose [1975] WAR 41.
In none of these cases was the court referred to the decision of Burbury CJ in Woodward v Porteus No 1101971, in which, in my respectful opinion, his Honour in a most learned judgment foreshadowed and adopted the line of reasoning which found favour with Lord Denning MR and the other judges of the Court of Appeal in Froom v Butcher [1975] 3 All ER 520, approving and following Pasternak v Poulton [1973] 2 All ER 74 and O'Connell v Jackson [1971] 3 All ER 129. In Froom (supra), in his typically succinct and compelling style, Lord Denning said:
"Contributory negligence.
Negligence depends on a breach of duty, whereas contributory negligence does not. Negligence is a man's carelessness in breach of duty to others. Contributory negligence is a man's carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might be hurt himself: see Jones v Livox Quarries Ltd Before 1945 a plaintiff who was guilty of contributory negligence was disentitled from recovering anything if his own negligence was one of the substantial causes of the injury: see Swadling v Cooper. Since 1945 he is no longer defeated altogether. He gets reduced damages: see Davies v Swan Motor Co. (Swansea) Ltd The present law is contained in s.1(1) of the Law Reform (Contributory Negligence) Act 1945, which says:
'Where any person suffers damages as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage ...'
Section 4 says:
'"fault" means negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apart from this Act, give rise to the defence of contributory negligence.'
Those provisions must be borne in mind as we take our consideration further.
The cause of the damage.
In these seat belt cases, the injured plaintiff is in no way to blame for the accident itself. Sometimes he is an innocent passenger sitting beside a negligent driver who goes off the road. At other times he is an innocent driver of one car which is run into by the bad driving of another car which pulls out on to its wrong side of the road. It may well be asked: why should the injured plaintiff have his damages reduced? The accident was solely caused by the negligent driving by the defendant. Sometimes outrageously bad driving. It should not lie in his mouth to say: 'You ought to have been wearing a seat belt.' That point of view was strongly expressed in Smith v Blackburn by O'Conner J He said:
'... The idea that the insurers of a grossly negligent driver should be relieved in any degree from paying what is proper compensation for injuries is an idea that offends ordinary decency. Until I am forced to do so by higher authority, I will not so rule.'
I do not think that is the correct approach. The question is not what was the cause of the accident. It is rather what was the cause of the damage. In most accidents on the road the bad driving, which causes the accident, also causes the ensuing damage. But in seat belt cases the cause of the accident is one thing. The cause of the damage is another. The accident is caused by the bad driving. The damage is caused in part by the bad driving of the defendant, and in part by the failure of the plaintiff to wear a seat belt. If the plaintiff was to blame in not wearing a seat belt, the damage is in part the result of his own fault. He must bear some share in the responsibility for the damage and his damages fall to be reduced to such extent as the court thinks just and equitable. In Admiralty the courts used to look to the causes of the damage: See the The Margaret. In a leading case in this court, under the 1945 Act, we looked to the cause of the damage: see Davies v Swan Motor Co. In the crash helmet cases this court also looked at the causes of the damage: See O'Connell v Jackson. So also we should in seat belt cases."
The irresistible logic of this view has prevailed. See Hanly v Berlin [1975] Qd R 52, Eagles v Orth [1975] Qd R 197, Perry v Bryan 61978 (Cosgrove J), McKecknie v Verdich 351983, (Cox J), Smedly v Smedly 291984, (Cosgrove J) and Hallowell v The Nominal Defendant [1983] 2 Qd R 266.
The approach adopted by the courts in these cases is consistent with that previously followed in other cases in which the injured party's only fault has consisted of behaviour likely to enhance the severity of injuries, for example, driving with an elbow protruding out of the open window of a car door. See Mattioli v Parker [1973] Qd R 9, Moore v Sepuka 9/1964, and Tansley v The Nominal Defendant 75/1964. It should be borne in mind however that as with all allegations of contributory negligence, the onus rests upon the defendant and it is necessary to show a causal connection between the conduct complained of and the injury sustained. Additionally, it may be necessary in an appropriate case to establish that a seat belt which could have been used by the injured party, was in a proper working order. See Dawkins v Robinson & Anor. (1986) 3 MVR 77 and Yisrael v Chamberlain John Dere Pty Ltd (1987) 5 MVR 491. In the latter case, Clarke JA. said at 492:
"It is established that it is necessary for a defendant who seeks to charge a plaintiff with contributory negligence on the ground that he was not wearing a seat belt at the relevant time, to prove that the seat belt with which the relevant vehicle was equipped was available to the injured person and in good working order (see Dawkins v Robinson (1986) 3 MVR 77)."
This passage in the judgment was relied on and applied by Slattery CJ at CL in Dutcher v Government Insurance Office New South Wales (1988) 7 MVR 447. Whilst I can see a certain amount of merit in this proposition, in cases in which a casual passenger in a vehicle is injured, if it is meant that affirmative evidence must be forthcoming in all cases involving seat belts to establish that the fastening and fabric of the belt in question was capable of restraining the plaintiff's body in the circumstances of the accident in question, I think the proposition goes too far.
In a case such as the present, where the plaintiff was the regular driver of the vehicle in question and periodically used his seat belt, and has given his evidence without in any way suggesting that it was defective, there is obviously a clear basis for inferring that it was in good working order at the time of the accident. That is certainly the conclusion I would come to in the present case, but for reasons already expressed, I have concluded that the defendant does not succeed on the plea of contributory negligence based upon the plaintiff's failure to wear a belt. Strictly speaking, it may be appropriate to regard the failure to wear a seat belt as in part productive of the injury to the knee and forehead, but in the overall picture, these injuries are so minimal that it is quite inappropriate to make any reduction in damages on that account.
Following the accident the plaintiff was taken to the Royal Hobart Hospital by ambulance. His knee was X–rayed and bandaged and he returned home to rest his leg for two or three days. Following this he returned to his work in the casualty department at the hospital and soon after recommencement of his work, he noticed that he had some low back pain. Within a short time that pain had become most uncomfortable and he was referred to Mr Bye an orthopaedic surgeon who was conducting a fracture clinic at the hospital that day. At Mr Bye's direction, X–rays were carried out and a crush fracture of the lumbar spine was noted.
The plaintiff returned home for a week's bed rest and thereafter he was admitted to the Royal Hobart Hospital for a further week or two. Mindful of his obligation to complete 50 weeks as an intern at the hospital, and conscious that he had already had three weeks off work, the plaintiff elected to undergo conservative treatment consisting of a plaster of Paris jacket wrapped tightly around his torso so that he would be able to continue his duties as a doctor. This uncomfortable and restricting device was in place for approximately three months. During this period of time the plaintiff continued to work at the hospital, though not without difficulty. During most of his surgical term he was forbidden entry to the operating theatres because of the infection risk posed by this device encasing his unwashed body.
At home he was assisted with many of his domestic chores by his future fiancèe, Miss Smith. His plaster jacket was subsequently changed for a hexalite jacket which was somewhat more comfortable and he received some acupuncture treatment which gave temporary relief. The plaintiff continued to have conservative treatment from Mr Bye until the beginning of 1981, when having finished his first year internship with the Royal Hobart Hospital, he considered that it was necessary to seek a more lasting solution to his continuing discomfort.
Accordingly he was referred to Mr HV Crock, a very well qualified and eminent surgeon, then practising in Melbourne. Suspecting a ruptured spinal disc, Mr Crock ordered discograms to be carried out and when these produced a positive result, a fusion at L1/L2 was recommended. The plaintiff was admitted to St Vincents Hospital between 10 March 1981 and 28 March 1981 and Mr Crock performed an anterior spinal fusion a major procedure entailing (inter alia) the removal of one of the plaintiff's ribs. The plaintiff was then discharged home wearing a Taylor brace. The plaintiff returned to Hobart and took up residence at the flat occupied by Miss Smith at 31 Lipscombe Avenue, a course which was decided upon because of the plaintiff's substantial immobility. He needed assistance in walking and toileting procedures. Within a few days of moving into the flat however, he developed orthostatic pneumonia of the left lower lung, a condition apparently caused by an inability to fully ventilate the lungs and clearly enough, directly related to the spinal fusion operation. The plaintiff was hospitalised in St Johns Hospital from 2 to 4 April and again from 10 until 12 April for treatment for this condition.
Soon thereafter the plaintiff returned to Melbourne to see Mr Crock who then advised him that, as there had not been proper union at the laminectomy site, it would be necessary for the plaintiff to continue for another three months in the Taylor brace. With this rather discouraging advice the plaintiff returned home but soon thereafter, within a period of approximately four days, the back pain, which until this time had been fairly tolerable, became unbearably bad. At this stage the plaintiff had just commenced studying for the second part of his surgical exams, but these preparations were interrupted by this sudden onset of severe pain which was originally suspected to be due to osteomyelitis. The plaintiff was treated initially by a local general practitioner who administered pethidene injections and the following day, under the care of Mr David Cull, a neurosurgeon, the plaintiff was admitted to Calvary Hospital.
Attempts were made to control the plaintiff's severe pain by epidural blocks but these afforded no relief. The plaintiff was also placed on a regime of narcotic pain killers at four hourly intervals. In addition, he was given intravenous antibiotics to combat the suspected osteomyelitis. He was an in–patient at Calvary Hospital from 6 July 1981 to 2 August 1981, except for a short period between 10 and 13 July. On the 2 August 1981 he was referred by Mr Cull back to Mr Crock in Melbourne and he was admitted to the Epworth Hospital. Mr Crock attempted to control the plaintiff's pain by administering paravertebral blocks. In other respects no change was made to the plaintiff's treatment. This afforded some short interruption to, but no enduring relief from, pain and the plaintiff was thereupon sent back to Tasmania. Whether as a result of the plaintiff's developing drug addiction, or the fear that he may have become a carrier for golden staph infection is unclear, but the plaintiff was refused admission to any Hobart hospital at this time. He was left with the options of returning to Melbourne or returning to Miss Smith's flat for further convalescence. After discussions between them, the latter course was decided upon. Narcotic injections were still required to control the plaintiff's substantial pain. He lost a considerable amount of weight and suffered severe bouts of nausea quite frequently. To use the plaintiff's own words, "at that time I felt helpless, I was totally dependent on my girl friend for everything, I was bed bound, I had to be helped to the toilet to open my bowels, I felt alone in the world and I didn't see my future as being very rosy at all." He said he had a real fear that he had nothing left to live for and that he may be driven to suicide. It is plain from the evidence of the plaintiff and Miss Smith (now Mrs Lamen) that he was then at a very low ebb and was very depressed. He was vomitting regularly as a consequence of his heavy ingestion of drugs. He developed adverse reactions to some medication and he commenced to smoke heavily. He and Miss Smith had previously enjoyed an active sex life but he found this activity painful and lost interest probably as the combined result of pain and depression. He was almost totally dependent upon Miss Smith. Insofar as his claim for damages arises out of the agonies of drug addiction it is plain that he must be compensated, particularly as the addictive drugs appear to have been supplied upon bona fide medical prescription (cf. Luntz: 2nd edn para 2.7.06).
After some time the plaintiff began to realise that he was suffering from drug addiction and he had sufficient insight to realise that if he did not take steps to overcome this problem, he may not have very long to live. His first attempts to detoxify himself resulted in severe withdrawal symptoms and after consulting with his local general practitioner, he was transferred to the Melbourne Pain Management Clinic where under the care of Dr Leonard Rose he received out patient treatment consisting substantially of acupuncture. This continued between 29 September and 10 October 1981. The plaintiff then returned to Tasmania for a brief period, during which time arrangements were made for him to be admitted to a different institution called the Melbourne Clinic, under the care of Professor Graham Burrows, a specialist in Psychiatry and Pain Management. At this Clinic he underwent prolonged treatment between 25 October 1981 and 12 August 1982. Miss Smith who by this time had become his fiancèe, accompanied him and rendered considerable assistance in his recuperation. Professor Burrows described her as being a "major moral and psychological support" for the plaintiff and a substantial factor in his rehabilitation. He was weaned off narcotics and experienced severe and distressing withdrawal symptoms. The narcotics were replaced by major tranquilisers and as a result of the treatment given by Professor Burrows, including acupuncture and self hypnosis, the plaintiff was able to bring his pain under control. Between 23 and 28 November 1981, whilst still under Professor Burrows' care the plaintiff was admitted to the Freemasons' Hospital where he was treated by Dr Koadlow, a rheumatologist experienced in rehabilitation medicine. A number of paravertebral blocks and facet blocks were administered in an attempt to overcome the plaintiff's pain, but without effect. The plaintiff found that by self hypnosis, he could control the severity of his pain but this process required considerable concentration over an extensive period of time. Unfortunately it was not effective when the plaintiff went to sleep, because by doing so, he lost control over the process and as a result his sleep was frequently interrupted by the fresh onset of pain.
Early in 1982, Professor Burrows referred the plaintiff back to Mr HV Crock who suggested that the plaintiff should undergo a further operation. Being reluctant to do so, the plaintiff sought a second opinion and following receipt of that advice, he agreed to the surgery proposed. He was again admitted to the Epworth Hospital on 4 April 1982 where he under went a decompression laminectomy. He was discharged from hospital on 13 April 1982 and returned to the Melbourne Clinic. At that stage the plaintiff was still in constant pain, although he felt he had a lot more control over it. He was now using minor tranquilisers only for pain control and in June that year, Professor Burrows arranged for him to undertake an honorary internship at the Royal Melbourne Hospital in an attempt to re–introduce him to medical practice. The plaintiff found that he could only do about two hours work on his feet before the back pain became too much for him. He also found that driving to and from his place of work was very tiring and uncomfortable. He sought and obtained alternative work as a locum tenens for a general practitioner, working three or four hours a day. The plaintiff's entitlement to workers' compensation payments had ceased early in 1982 and thereafter he received financial assistance from his father in New Zealand and also unemployment benefits.
Following the locum tenens job in Melbourne, the plaintiff returned to Tasmania and obtained a job as a locum tenens in Launceston. He also made attempts to obtain employment as a second year resident, by applying "to almost every hospital in Australia". He and his fiancèe married in October 1982 and a few days thereafter, he left to work at Tamworth Base Hospital where he had been successful in obtaining work as a junior resident medical officer. His wife remained in Tasmania because of difficulties which she anticipated in getting work in New South Wales. At the time she was a police officer in the Tasmania Police Force and the prerequisites for employment as a police officer in New South Wales differed from those in this State.
The plaintiff was still requiring substantial doses of tranquiliser to manage his pain and on disclosing his condition to a colleague at Tamworth Hospital, he was referred to Dr Bosler who prescribed the use of a TENS machine which the plaintiff used thereafter for 24 hours a day and received a reasonable amount of pain relief. However, after several month's use, he developed an allergy to the electrodes on the machine, which caused his skin to become affected to such an extent that he was no longer able to use it. In an attempt to control his chronic pain by some other means the plaintiff submitted to the administration of epidural steroids through a procedure similar to a lumbar puncture at the Tamara Private Hospital at Tamworth. Unfortunately, this procedure afforded no relief and, on the contrary, led to an excessive loss of cerebro–spinal fluid for which the plaintiff was then admitted to the Tamworth Base Hospital for treatment between 4 and 22 June 1983. He says that as a consequence of this condition he was obliged to lie on his back for a period of three months, but in view of the fact that he was admitted to the Illawarra Rehabilitation Centre on the 15 July 1983, I think this estimate must be incorrect, particularly as Mrs Lamen recalled this episode as lasting only ten to fourteen days. Prior to his admission to the Illawarra Rehabilitation Centre the plaintiff's professional performance at the Tamworth Base Hospital had deteriorated to such an extent that the Director, Dr Moran had considered giving him an ultimatum to either undertake further treatment of the kind offered by the Illawarra Centre, or be dismissed from the hospital. Whilst at the Illawarra Centre the plaintiff resolved to stop all medication completely and to become totally drug free, a state of affairs which he finally achieved in about November 1984.
The plaintiff was treated at the Illawarra Centre for a period of approximately ten weeks from 15 July 1983 and achieved very encouraging results as a consequence of the combined therapy programme which he followed. His weight returned to normal at around ten stone during this period of time. On the 19 September 1983 he returned to the Tamworth Base Hospital to resume his professional duties. His employment continued thereafter at that hospital, but whilst at Tamworth a marital rift occurred between himself and his wife, resulting in divorce proceedings by his wife approximately a year and a half later. The cause of this marital breakup was the subject of some conflict in the evidence of the plaintiff and Mrs Lamen and in this respect I find the evidence of Mrs Lamen more convincing than that of the plaintiff. She told me that their relationship had deteriorated noticeably by the time they returned together to Tamworth, after the plaintiff had performed a locum tenens assignment in Ulverstone for a period of about three months. The plaintiff suggested that the change in the relationship stemmed from Mrs Lamen's change of role from nurse/housekeeper to equal marriage partner as his physical and mental health improved, whereas she ascribed the breakdown to the difficulties in his personality which had developed. She said that he was, "quite critical of me and just generally he was nasty to live with". She also said that he was argumentative and constantly angry, and she also confessed to suspecting him of infidelity (although this suspicion was not fully substantiated by the evidence which she gave).
There is little doubt in my mind that the strain placed upon their relationship by the plaintiff's injury and subsequent prolonged history of treatment, complicated by pain and drug dependency, had a material effect upon both of them. I think that the plaintiff's obnoxious behaviour to his wife can properly be attributed to the injuries sustained in the accident and their sequelae. She gave him assistance and support of a quite remarkable kind and I am satisfied that without her devotion, he would not be where he is today. Compensation for the attention and assistance which she provided will be allowed for in the Griffith v Kerkemeyer component of the claim. It was submitted however, that I should also allow something by way of general damages to compensate the plaintiff for the loss of his wife. It is plain enough that in an appropriate case, such a component may be included (see Hird v Gibson [1974] Qd R p14), but there are sound reasons in the present case for keeping such a component at a very low level. Indeed, it may be said with considerable justification that no allowance should be made at all. In the first place, the plaintiff and his wife were not married when he sustained his injury, and secondly the relationship which they then had, whilst mutually satisfying and rewarding, may well have disintegrated for other reasons had the accident not occurred. Crawford J said in Examiner Newspapers Pty Ltd v Geeves, 74/1975, "Estrangement between spouses and adultery are so common that I should find it more probable than not that the estrangement would have occurred even if there had been no accident". I would not go so far in this case but the substance of the view expressed by Crawford J appears to me to be relevant to a claim of this kind.
I should also record that I have little doubt that the sympathetic and supportive assistance which the plaintiff received from Dr John Moran and his other colleagues at the Tamworth Base Hospital, was a major factor in setting the plaintiff firmly on the road to rehabilitation of his medical career. Nonetheless, there is equally little doubt that without the plaintiff's own outstanding tenacity and resolve, this outcome would not have been achieved. His capacities whilst at Tamworth were limited, he was unable to pursue his preferred career path into surgery, and allowances had to be made for his limitations by rearranging the service rosters. It must therefore be borne in mind that his rehabilitation, whilst significant was by no means complete. Indeed, it cannot be regarded as complete even now.
Dr John Bosler has specialist qualifications in musculo–skeletal medicine and has a particular interest in physical and sports medicine. He gave evidence on behalf of the plaintiff and said that when he first saw the plaintiff in October 1982, he appeared to be in constant pain and was taking analgesics and sedations far in excess of the recommended maximum dose. The main pain complained of appeared to be in the region of the sacroiliac joint and examination by Dr Bosler revealed a weakness in the left sacroiliac joint which he treated with local anaesthetic and locally acting cortisone which provided considerable, but incomplete, relief. He also successfully re–introduced the plaintiff to the TENS machine (Professor Burrows had used it to some extent when the plaintiff was under his care) and administered steroids in the Tamara Private Hospital as I have already mentioned. In Dr Bosler's opinion, the plaintiff is likely to continue to suffer from back pain in the future. He recommends an exercise programme, hydrotherapy and the continuing use of electrical pain control. He also expressed the opinion that the plaintiff would be unable to perform surgery because of the likelihood of prolonged standing causing excessive pain. This was a view substantially endorsed by other medical practitioners who gave evidence and it is an opinion which I accept.
Dr Alex Ganora, a specialist in rehabilitation medicine and the medical director of the Illawarra Rehabilitation Centre, expressed the view that the plaintiff's complaints of pain when he was admitted to the Centre were not psychogenic in origin and appeared quite genuine and consistent with his findings upon examination. He also expressed the view that there is currently considerable competition between medical applicants for rehabilitation positions in the public hospital system in New South Wales. Accordingly this is a factor which must be borne in mind in assessing what the future holds for the plaintiff in terms of employment. When cross–examined as to the plaintiff's present level of sporting participation in sail boarding, rock climbing, golfing and tennis, Dr Ganora said:
"Well I am sure he does these things with some difficulty. He was specifically instructed by me to attempt all those activities as part of his continuing upgrading and I emphasised to him that he should pay the price of increased pain when performing those sporting activities in return for a greater gain in maintaining his level of function".
I believe it is important to bear these views in mind, particularly as they were echoed by other medical practitioners, when considering the plaintiff's participation in active sports and past–times. To my mind it is quite clear that the plaintiff's regular sporting programme, whilst affording him considerable enjoyment, has been undertaken primarily for the purpose of keeping himself physically fit and that he is active only at the cost of substantial post–activity pain or discomfort on most occasions. I am also satisfied that there are some pre–accident activities, principally snow skiing and sailing, which the plaintiff now finds too taxing to endure. He has also tried indoor cricket and squash whilst at Tamworth, but not surprisingly, found that the penalty in pain was too great to continue. The plaintiff has also been out dancing from time to time since the accident and whilst able to perform domestic chores such as vacuuming and washing up, he finds that these activities place painful strain upon his back. Similarly, he finds that working on his motor car, bending over the bonnet for more than ten or fifteen minutes can cause quite severe pain. He pursues a regular bike riding programme to sustain his physical fitness.
Obviously inspired by his own experiences over the years since the accident, the plaintiff has directed his professional ambition into the area of rehabilitation medicine. In January 1985 he moved to Sydney and took up a position as Rehabilitation Registrar with the Prince of Wales Hospital Group. He has already completed some of the examinations towards the attainment of Fellowship of the Royal Australian College of Rehabilitation Medicine. His particular interest in this field relates to spinal injuries and despite the somewhat gloomy predictions of Dr Ganora, the plaintiff himself sees a substantial future for practitioners in rehabilitation medicine, although significantly there does not appear to be the same breadth of opportunity for private practice that there is in other medical areas. Much of the evidence by the plaintiff and other medical practitioners tended to suggest that private practice is generally more profitable than employment in a public hospital but no facts or figures affording concrete support for this proposition were forthcoming. However, plainly enough a substantial allowance must be made in the assessment of damages for the fact firstly, that the plaintiff has been obliged, contrary to his original inclinations, to direct his professional ambitions into areas where his choices and opportunities have been narrowed. Furthermore, he claimed, and I so find that his professional development has been effectively delayed by approximately three years as a consequence of surgery, convalescence, treatment and rehabilitation. It must also be borne in mind that although the stresses and strains upon his back may be somewhat less in the rehabilitation area than they would have been had he gone into a field such as orthopaedic or cosmetic surgery, his daily practice is likely to place him in situations where heavy lifting and bending will be called for. So he will have a continuing exposure to pain and discomfort as a consequence of the discharge of his professional duties and he may therefore be temporarily disabled from time to time.
I do not overlook of course the very relevant factor which emerged from Mr Buzzard's evidence establishing that aspiring surgeons have many professional hurdles to surmount before becoming established in this field, so that ambition per se is not necessarily the key to success. Mr Buzzard, a surgeon of considerable eminence, gave evidence on behalf of the defence, and both he and Dr Michael Alcock, place different interpretations upon recent X–rays of the plaintiff's spine from those expressed by Mr H.V. Crock. With all respect to both Mr Buzzard and Dr Alcock, I prefer the evidence of Mr Crock, himself a surgeon of great distinction with particular expertise and extensive experience in the area of spinal surgery. Furthermore, as already noted, he was the surgeon who treated the plaintiff and performed two surgical procedures upon his spine in Melbourne. He also claimed, and in my opinion with justification, that he had a special ability in the interpretation of spinal X–rays. Mr Crock says that there is now a 20% narrowing of the plaintiff's lumbo–sacral disc space and that there are significant changes in the size of the facet joints at L5S1 and at L45 indicating that there are degenerative changes occurring in both of those joint systems which are connected with the discs at L45 and at L5S1. Accordingly, he associates the plaintiff's continuing complaints of pain with the condition of his lower lumbar spine. He also pointed out that the pain now complained of is exclusively spinal pain and is not associated with radiating leg pain which would have been anticipated if the source of the pain was foramenal spinal stenosis as suggested by Mr Buzzard in one of his reports. As a consequence of these findings, Mr Crock suggested that the plaintiff may require further investigation and possibly further spinal fusion in the future. The inference is clear that this results from the initial trauma to the plaintiff's spine caused in the accident. Indeed Mr Buzzard in his evidence conceded that the plaintiff's present spinal disabilities resulted from the injuries received in the accident. As a consequence of Mr Crock's views, there must be something of a question mark over the plaintiff's future, despite the substantial progress which has been made during the past nine years. It is not easy to forecast whether or not the plaintiff will submit to further surgery and in light of his past experiences, one could appreciate any reluctance to do so. Indeed, as Mr Crock himself observed:
"I believe that this patient's behaviour has been surprising in my experience in the sense that patients who have had a complicated course post–operatively following two spinal operations, of course, complicated by major drug dependency and major psychological disturbance – it is unusual to find such a patient returning at all to the workforce and yet Dr Hannan has not only returned to the workforce but he has engaged in post–graduate training with some degree of success."
Mr Crock also made it clear during cross–examination that he was unable to say when, if at all, the plaintiff would require to undergo further surgical procedures. The following passage in his cross–examination is relevant:
"QIt could be many years into the future correct?
AIt may be, yes.
QIt may never occur at all?
AThat is correct.
QAnd it's quite feasible that he could just simply go on putting up with things as they are into the indefinite future?
AIt's a possibility yes."
For these reasons it is plainly unjustifiable and inappropriate to attempt an assessment of the plaintiff's future economic loss based upon a projected quantification of lost earning capacity over a specific period of time.
A substantial attack was made on the credit of the plaintiff by defence counsel in his closing address and it was pointed out, with some justification, that in many respects his evidence was unsupported by confirmatory evidence. It was also pointed out that in respect of the breakdown of the marriage, he and his former wife were in significant conflict and I have already commented upon this. My overall impression is that the plaintiff has tended to exaggerate to some degree and to reconstruct some facts which he cannot clearly recall. His evidence is accordingly, by no means 100% reliable. Nonetheless I find the chronological events following his accident to be in accordance with the historical narrative that I have included in these reasons. I am also satisfied that the plaintiff's complaints as to past and present pain are fundamentally truthful. My main areas of doubt as to his veracity are in relation to the breakdown of the marriage relationship and the past and present expenditures which he claims to be making in respect of the items comprised in the special damages claim, but in other respects I regard the criticism of his credit made by defence counsel in his closing address, as without substantial foundation.
Turning now to the particular heads of damage, I should say at the outset that I initially found the material provided in respect of the plaintiff's claim for loss of past earning capacity somewhat confusing. The claim was not formulated in an orthodox way, perhaps because it is incapable of being so formulated, but as counsel has recently attended in Chambers to explain the figures contained in the particulars, I now have a clearer understanding of how this claim is put. The evidence of Mr Donald Bailey, the Assistant Director of Administration at the Royal Hobart Hospital, was of assistance in indicating the earning capacity of selected medical officers at the Royal Hobart Hospital between July 1981 and June 1987, but those figures were not necessarily representative of salaries being earned by employed doctors at the hospital at the relevant times, and no direct comparison can be made between the earnings of those doctors and the plaintiff's actual earnings during the relevant period. However, Mr Bailey's evidence did indicate to my satisfaction that the plaintiff, in all likelihood, would have earned a fairly substantial sum by way of overtime had he been fully available to perform this work. I am satisfied that by reason of his injuries he was not able to do so and that therefore an appropriate allowance must be made on this basis. It is clear enough from the evidence that the plaintiff has to some extent been unable to earn overtime payments since the accident as a consequence of his injuries and that such payments would normally be available to medical practitioners engaged in the areas in which he was employed, but to quantify the plaintiff's resultant loss is no easy task. An assessment under this head must therefore proceed with caution and great moderation. In my opinion, an award in excess of $35,000.00 (nett) could not be justified. That is the sum which I allow.
The plaintiff's future economic loss in which I include the plaintiff's lost opportunities to embark upon a surgical career, is equally difficult to assess. Recognition must be given that the door was shut upon the plaintiff's hopes of a surgical career at an early stage of his apprenticeship as a resident medical officer. Account must be also be taken of the fact that the plaintiff's work in future will be restricted by his ongoing chronic pain, and one cannot leave out of account the possibility that he may need to take time off in future to undergo surgical procedures, and although highly unlikely, I think, that he may be substantially or totally incapacitated by his injury at some future time. He is certainly making excellent progress in the field of rehabilitation medicine, but it is a fair comment I think, that if competition becomes fierce for existing vacancies in this field in the area of public medicine, the plaintiff's prospects of earning a good income in rehabilitation medicine in private practice do not appear as promising as one would expect them to be in other fields of medical specialization. All in all I think that a figure of $200,000.00 should be allowed in respect of this component of the claim.
As to the Griffiths v Kerkemeyer component of the claim, I refer to what I said in Cook v Schuettpelz No 25/1987. I have had no occasion to modify the views which I then expressed since delivering that judgment. An extremely useful analysis of Griffiths v Kerkemeyer and the principles upon which it was based is contained in the judgment of Kirby J in Hodges v Frost (1984) 53 ALR 373. As his Honour said at p380:
"Finally, it is made plain in Griffiths v Kerkemeyer, and in cases since, that what is being compensated for is the loss of the injured victim's own capacity, not the benevolent activities of relatives and friends. True it is, to put the money value on that loss of capacity, regard is had to the nature, intensity and duration of the gratuitous services.
However, the compensation though calculated with these services in mind, is not for the services but for the loss of capacity which the services may help to evidence."
Further on, his Honour continued:
"Clearly, it is not correct to approach compensation to a victim of injury by adding to all other rights to compensation the new factor comprising money damages calculated by reference to nothing more than commercial rates for household assistance".
In this case I was provided with evidence as to commercial rates for household assistance by the Bay Nursing and Domestic Agency. But in the circumstances of the present case these figures do not really provide clear guidance. From what I have already said it will be plain that I regard Mrs Lamen as having materially contributed to the plaintiff's rehabilitation. I think it is also plain that she did this by catering to his physical and emotional demands in ways which are not adequately represented by her evidence as to the times actually taken upon individual tasks. I think it would be fair to regard her on going support to the plaintiff up until the time that he took up employment at the Tamworth Base Hospital as properly compensable under this head. Embedded in the claim were specified items for expenditures which she made on the plaintiff's behalf. If allowable at all, these expenditures must fall within the principle of Wilson v McCleay (1961) 106 CLR p523. But whilst I have no doubt that Mrs Lamen spent a considerable proportion of her own financial resources in providing him with reading and hobby material, providing accommodation for herself so that she could be near him whilst he was undergoing treatment, and in telephoning him to provide moral support when she was unable to be by his side, I have considerable difficulty in the absence of confirmatory documentary evidence in allowing any of those claims as individual items. Accordingly I propose to take them into account in a general and conservative way in assessing an appropriate figure for the Griffiths v Kerkemeyer claim. Doing the best I can upon the whole of the material, I think it would be not unreasonable to allow the sum of $25,000.00 on this account. This forms part of the award to the plaintiff of course, and I have no power to direct how it should be utilised but it would be less than fair if the plaintiff did not reimburse a substantial part of this sum to Mrs Lamen.
As to pain, suffering and loss of amenities, the plaintiff has suffered severe and chronic pain over a substantial period of time since the accident and he will continue to suffer pain in the future. I do not propose to reiterate what I have already said as to this. By unusual will power and determination the plaintiff has been able to substantially overcome a handicap which would undoubtedly have totally incapacitated a lesser man. He is now 34 years of age and whilst his condition appears to have stabilised, the future still holds some uncertainty in terms of future surgery and treatment. In my opinion, a proper award for pain, suffering and loss of amenities in the circumstances of this case, is the sum of $40,000.00.
The plaintiff claims in respect of special damages an amount of $74,514.23 representing amounts which have been reimbursed to him by the workers' compensation insurers between 1980 and 1986. This figure is admitted by the defendant's solicitors and the plaintiff claims that in addition to this sum, he has incurred an extra $3,000.00 for medical and pharmaceutical expenses. The only substantiation of this claim is the plaintiff's oral evidence. There are no receipts or other documents produced to substantiate it. The total which I can conscientiously allow is $1,500.00.
The plaintiff also claims for future medical expenses. I am satisfied that he will require medication in future and although his claim as particularised, did not include an amount for a TENS machine, I think an allowance ought to be made for this "one–off" capital cost, despite the valid criticisms made of the plaintiff's evidence in respect of his lack of use of the TENS machine in the recent past. In respect of future medical expenses, including the immediate supply of a new TENS machine, I think it reasonable to allow the plaintiff the sum of $10,000.00.
Damages are therefore assessed in accordance with the following summary and judgment will be entered for the plaintiff in the sum of $267,783.26.
Summary
1 Past economic loss
(workers' compensation payments– $36,153.20 and loss of overtime $35,000 (nett))
$71,153.20 2
Future economic loss.
$200,000.00
3
Griffiths v Kerkemeyer
$25,000.00
4
Pain, suffering and loss of amenities
$40,000.00
5 Past medical, hospital and pharmaceutical expenses.
(Including $74,514.23 workers compensationreimbursement plus additional allowed $1,500).
$76,014.23 6
Future medical expenses
$10,000.00
$422,167.43
Less 10% (Contributory Negligence)
$42,216.74
Total
$379,950.69
Less Workers' compensation payments $36,153.20
and medical, hospital and pharmaceutical expenses received $76,014.23
$112,167.43
$267,783.26
3
4
0