Harradine v Bishop No. DCCIV-99-1198

HARRADINE v BISHOP
[2003] SADC 111
Judge Kitchen
Civil

In this action the plaintiff claims damages for injuries he suffered on 20 September 1996 when the motorcycle he was riding, travelling west along Stanbel Road, Salisbury Plains, collided with a Mazda utility motor vehicle being driven, on its correct side of the road, to the east along Stanbel Road. The Mazda vehicle was being driven by Alan James Jonas (Mr Jonas).
Stanbel Road is aligned approximately east west. It is approximately 1.1 kilometres in length. At its eastern extremity it forms a junction with Main North Road and at its westerly extremity it forms a junction with Fenden Road. The carriageway of Stanbel Road is approximately 11.35 metres in width, divided by a central painted broken line into two traffic lanes one for each direction of travel.
The collision between the motorcycle being ridden by the plaintiff and the Mazda vehicle being driven by Mr Jonas occurred (see Exhibit D17) at a point on Stanbel Road approximately 810 metres, measured from the junction between Stanbel Road and Main North Road, and approximately 290 metres measured from the junction between Stanbel Road and Fenden Road. Exhibit D17 also shows the position at which Arcoona Road and Barcoonta Road join Stanbel Road on its southern and northern side respectively, as well as the position of two entrances onto the northern side of Stanbel Road from a car park and one entrance into a Council depôt also on the northern side of Stanbel Road. The car park and depot were both owned by the Corporation of Salisbury. Exhibit D8 shows, on a larger scale, the section of Stanbel Road locating the position of the entrances to the car park, the entrance to the Council depot and the approximate point of impact.
The plaintiff’s case is that the collision occurred when, en route on Stanbel Road from Main North Road to Fenden Road, he swerved his motorcycle onto the incorrect side of the road to evade, by overtaking, a three tonne bitumen truck (owned by the Corporation of Salisbury) which had been driven by the defendant from the northern side of Stanbel Road into the plaintiff’s path of travel along the southern carriageway of that road. The plaintiff alleges that the defendant was negligent in that inter alia the defendant failed to give way to the plaintiff.
The defendant’s case is that he reversed the truck out of a car park, situated on the northern side of Stanbel Road, to a position parallel with and close to the northern kerb alignment of that road, where he stopped facing to the west. He intended to drive diagonally across the road into the southern carriageway and travel west towards Fenden Road. He then drove away from his stationary position, diagonally across Stanbel Road, into the southern carriageway and his vehicle was wholly within the southern carriageway travelling toward Fenden Road before the plaintiff’s motorcycle collided with Mr Jonas’ vehicle. The defendant denies that he was negligent, and alleges the collision occurred wholly by reason of the plaintiff’s negligence or, alternatively, the plaintiff was guilty of contributory negligence.
I will deal first with the issue of liability.
At the date of the collision the plaintiff, who was born 13 September 1972, was 24 years old. He had obtained a learner’s permit allowing him to ride a motorcycle about two or three weeks before this accident. Except for a rider’s safety course which as I understand was a component of a test to obtain his learner’s permit, and what he called “occasional” rides on trail bikes, the plaintiff’s experience had been riding each day in that period of two to three weeks a motorcycle he had recently purchased. There is some evidence the plaintiff had held a licence to drive a motor car since he was 16 years old (Exhibit D16).
The plaintiff’s evidence is that he had been at his friend’s house in Evanston on 20 September 1996 until about 2.00pm when he left there to ride his motorcycle to his home in Brahma Lodge. His route took him along Main North Road and then onto Stanbel Road to travel west. He had not previously travelled along Stanbel Road any further than the premises of DJ Motorcycles, which he said were on the southern side of Stanbel Road in the vicinity of Arcoona Road, which is approximately 200 metres west from the junction of Main North Road. The plaintiff said traffic on Stanbel Road was light, the day was fine but slightly overcast and, as was his usual practice, the headlight of his motorcycle was illuminated.
Having turned onto Stanbel Road and headed west, the plaintiff said, he became aware of a motorcycle about 50 to 70 metres ahead of him, in the southern carriageway, which he assumed had come onto the roadway from the premises of DJ Motorcycles. It was travelling at a speed he estimated to be 30-40 kilometres per hour, so he slightly accelerated to pass that motorcycle when he was about 50 metres west of Arcoona Road and then continued on at 60 kilometres per hour.
The rider of the motorcycle, which the plaintiff overtook, was Damien John Raspe (Mr Raspe) whom the defendant called to give evidence.
The plaintiff described that as he proceeded along Stanbel Road having overtaken the other motorcycle, he saw a Council truck at the entry/exit gates of the Council depôt: He went on (T.40-43)
"AHe was exiting from the council depot.
QWas that truck on Stanbel Road at all when you first saw it.
ANo.
QWhere was it in relation to Stanbel Road.
AHe was just before the road edge where the gutter is, and spoon drain, and he - sorry, he was rolling when I had noticed him. That’s when I proceeded to caution myself in case he wasn’t going to give way. Then he actually stopped. I thought he had stopped to give way so I proceeded - taking my eye off of him of course - and the next thing I recall he was halfway out on the road.
QYou said he was at the entry/exit gates to the council.
AThat’s right.
QAre you able to describe that area, are you familiar with that being the entry/exit gates to the council.
ANo, I wasn’t at the time because I didn’t regularly use that road. It was one of the first times I had actually taken that whole stretch on my path home.
HIS HONOUR
QIt was the first time you had ridden the length of Stanbel Road.
AThat’s correct.
XN
QSo what led you to believe it was the entry/exit gates to the council.
AI only know that now. I actually initially thought it was an intersection.
QWhat led you to think it was an intersection.
AI think the broadness of the area just it looks like an intersection - at a glance, you know, first appearance just riding by it appeared as an intersection.
QHow far were you from the truck when you first saw it, are you able to assist in that regard.
AIt was a short distance from the truck, no more than 100 m. I cannot pinpoint the exact distance, but -
QAt what speed were you travelling at that time.
A60 km/h.
QI think your evidence was that at about that point you cautioned yourself.
AThat’s correct.
QWhat do you mean by ‘cautioned yourself’.
AI decelerated taking my hand off the throttle and covered the brake.
QDid you apply the brake.
ANo, because it appeared that he had stopped.
HIS HONOUR
QWhen you say ‘covered the brake’ just what do you mean.
AWith your hand just covering over.
QNot your foot.
AYou can cover over both.
QWhich did you do.
AI think I done both actually.
XN
QSo you say you covered the brakes.
AYes, which -
QWhat did you next then observe of the truck.
AHe was coming out.
QWhen you next observed the truck where was it in relation to again to Stanbel Road.
ASorry, can you repeat that?
QYou said the truck was coming out; when you next saw the truck where was it.
AHe was about halfway across Stanbel Road heading west.
QAbout how far were you from the truck at that time.
ACould have been approximately 20 metres or so, maybe not even. I don’t think it was even that far to be honest.
QWhat did you next do.
AI realised he was - he had pulled out right in front of me and I was either going to crash right into the back of him, so I attempted to squeeze down the side where I thought there was a little bit of space.
QWhich side.
AThe left-hand side.
QIn what way did you move the bike.
ATo the left.
QThen what did you observe.
AI observed parked cars down that side and realised that if I had taken that option I was going to get crushed between the car and the truck.
QSo what did you next do.
ASwerved back to the right.
QYour speed at about that time, are you able to assist.
ANo more than 60 kilometres.
QWhat happened next.
AI had attempted to avoid the truck on the right-hand side crossing over into the eastbound carriageway and had a head on with the Mazda utility.
QDo you recall any contact with the truck.
ANo.
QOnly contact with the Mazda utility.
AThat’s right.
QYou have told us that you veered to the left initially.
AYes.
QWas that a sharp move or can you describe that manoeuvre.
AIt would have been fairly sharp. I also applied the brake at the time, I recall, to slow myself from hitting the back of the truck also whilst swerving left.
QYou then said you moved to the right.
AYes.
QCan you describe that movement.
AThe same sort of manoeuvre, a swerve, sharp swerve to the right.
QYou have told us then that you came in contact with a Mazda.
AYes.
QAt any stage as you travelled west along Stanbel Road did you observe any vehicle with flashing lights.
AMost definitely not.
QAt any stage as you travelled along Stanbel Road did you observe a truck parked adjacent to the northern kerb facing in a westerly direction.
ANo.
QMore particularly at any stage did you see the truck that you hit (sic) parked adjacent to the northern kerb facing in a westerly direction.
ANo.”
The plaintiff said that after colliding with the Mazda he came to rest on the roadway. He remained conscious; he tried to get up but saw that his right leg was bleeding and fractured bones were protruding through the flesh. A lady came to his assistance, applied a tourniquet to his leg and some ten minutes later an ambulance arrived which took him to the Royal Adelaide Hospital.
In cross-examination the plaintiff said that prior to 20 September 1996 he had driven along Main North Road up to twice a week, to and from his home in Brahma Lodge, to visit either his friend in Evanston or his parents in Gawler, but he had used Park Terrace (a road parallel to Stanbel Road) as part of his route; on this day he chose to use Stanbel Road because it was not a main thoroughfare and was likely to be less busy with traffic.
The plaintiff said he first saw the motorcycle ahead of him on Stanbel Road when he (the plaintiff) was still east of Arcoona Road, the other motorcycle being no more than 50 metres west of Arcoona Road. Taxed with his evidence-in-chief that he had said he overtook the other motorcycle about 50 metres west of Arcoona Road he said that the overtaking manoeuvre was in the vicinity of that position but denied it was 300 metres west of Arcoona Road. The plaintiff estimated his overtaking speed was no more than 70 kilometres per hour. He said he had not been watching his speedometer but “…. as I was on my (L plates) I was always aware, acutely aware of the speed I was doing around suburban streets”. He said he did not think it correct the other motorcycle was travelling at 60 kilometres per hour when he overtook it – he estimated the speed of the other motorcycle to be 30-40 kilometres per hour, or slightly more, “… (it) was fairly close to the southern kerb and it looked as if he was going fairly slowly, as if just to have pulled out from somewhere” (T.76). He denied he passed the other motorcycle at a speed of 90 kilometres per hour and that he was travelling at that speed, or a speed well in excess of 60 kilometres per hour, when he saw the truck had driven forward from the position in which he had first seen it; he reiterated he had decelerated, and ‘covered’ his brakes, to a speed of no more than 60 kilometres per hour upon first seeing the truck.
The plaintiff said that having passed the other motorcycle he does not know how long it was or how far ahead of the other motorcycle he was when he first saw the truck no more than 100 metres away “or considerably less”.
The plaintiff described that, it appearing to him the truck had stopped to allow him to pass, he looked ahead; he then became aware the truck had not stopped but had continued to drive forward, turning to the right, and most of the truck was in the west bound carriageway, so close to his position, not more than 20 metres away, that he could not do other than take the action he did – first to look to pass the truck on its left side but, on seeing that cars parked at the southern kerb made that impossible, he then swerved to overtake the truck on its right hand side. He said those actions were “split second” decisions on his part. He rejected the suggestion he was concentrating on the performance of his motorcycle and the speed at which he could press it along Stanbel Road and, becoming annoyed or frustrated when the truck took up a position ahead of him, he set about overtaking it when it was unsafe to do so.
The plaintiff agreed that on 12^th November 1996 he was questioned by a police officer, Sergeant (then Constable) Allan James Cooper. Sergeant Cooper made a written note of his questions, and the plaintiff’s answers, which he later transcribed; the transcription is Exhibit D16. The plaintiff did not, and was not asked to, sign the record of interview in either of its forms. Exhibit D16 includes these passages:
"Q“When did you first see the truck?”
A“I seen him probably maybe 20 to 30 metres before he pulled out. How you would normally view someone sitting at an intersection. I realise now that it wasn’t an intersection or T section, but that was an obvious mistake.”
Q“How far down Stanbel Road had you travelled before you saw the truck?”
A“It’s a long road, it’s hard to say. Because the road’s about 3 kilometres I don’t know, I’m not good with distances. Maybe 2 kilometres, when it’s 20 or 30 metres yeah, but when you’re talking kilometres it’s hard to say.”
Q“Where was the truck when you first saw it?”
A“At the Council exit.”
Q“By that do you mean it was at the exit gate of the Council depot, prior to entering onto Stanbel Road?”
A“Yes.”
Q“What did the truck do?”
A“He was moving slowly, I wasn’t sure if he was going to come out, I was ready for it, with my foot on the foot brake, over it. He stopped then proceeded to pull out.”
Q“Which way did the truck turn?”
A“Right, heading west.”
Q“How fast were you travelling when you first saw the truck?”
A“It would have been 60 kilometres per hour.”
Q“Did you notice anything about the truck, for example indicators or roof lights?”
A“No.”
Q“When the truck started to drive out onto Stanbel Road, what did you do?”
A“I basically thought of what I could do to get out of the situation. He pulled out right on me.”
Q“What was the position of the truck in relation to Stanbel Road by the time you reached it?”
A“It would have been on a slight angle, it hadn’t made it’s full turn – hadn’t straightened up I should say.”
Q“How far from the exit gate was the truck by the time you reached it?”
A“Pardon.”
QHow far along Stanbel Road had the truck travelled by the time you reached it?”
A“Like I said he was still basically making his turn so he hadn’t come out far, by the time he came out, maybe 10 metres or 5 metres.”
Q“What evasive action did you take once you realised the truck was pulling out?”
A“Well there was parked cars either side of the road, so the only thing really left besides going under the truck was swerving into the clear area, which was the other lane.”
Q“Did you see any vehicles approaching from the other direction?”
A“No I didn’t I actually didn’t think there was anything coming. You would be silly to pull out wouldn’t you. But it was a split second decision.”
Concerning what the plaintiff told Sergeant Cooper there was this exchange in cross-examination:
(T. 107)
"Q“When you were interviewed by the police officer on 12 November, did you mean to inform him that the first time you’d seen the truck at all on 20 September 1996, the day of the accident, was when you had reached a point approximately 20 to 30 metres from it.
ANo.
QWhat were you meaning to suggest by that answer.
AIt was an approximate answer and 20 to 30 metres – it may have been more. It was an approximate answer that I gave him at the time. As I go on to say there, if you’re riding past an intersection, you see somebody just like that.”
Exhibit D15 is a report by Mr Christopher Trentan Hall (Mr Hall) of his opinions concerning, inter alia, the speed of the plaintiff’s motorcycle prior to the collision with the Mazda vehicle; it includes photographs (marked P1 to P5) which he took on 7^th August 2000 depicting a reconstruction of what the defendant told him (and said in his evidence) occurred in the movements of the defendant’s truck on Stanbel Road before the collision, that is travelling to the west from a stationary position against and parallel to the kerb on the northern side of the road next to the western entrance to the carpark. The plaintiff said he did not see the truck perform that manoeuvre and rejected it occurred.
The plaintiff gave extensive evidence about the treatment he received for his serious injuries, the progress of his recuperation which was interrupted by two mishaps when he twice re-fractured his healing leg considerably delaying his recovery to the point he had reached at the date of trial, and the physical limitations upon his ability to work in his pre-accident occupation. He was asked very few questions in cross-examination upon those topics from which I infer that, in his evidence on those matters, the plaintiff was being honest and frank.
The defendant, who is 47 years old, has been employed by the Salisbury Corporation for 19 years. The truck he was driving on the day of the collision had been used by him for about 10 years after it had been assigned to him.
Part of the defendant’s duties included repairing pot-holes in bitumen road surfaces. He had started work on 20^th September 1996 at about 7.30 a.m., with Frederick Zammit (Mr Zammit), when he collected the truck from the Stanbel Road Depôt, obtained a load of bitumen from Prospect and then set about working in the Para Hills area. At about 1.00 p.m. the defendant obtained another load of bitumen and then returned with Mr Zammit to the Para Hills area to complete the task they had earlier been engaged on. He received a call from his supervisor to go to the Stanbel Road car-park to repair a pot-hole. He said about one quarter tonne of bitumen remained in the truck.
The defendant described that on 20^th September 1996 the car-park was divided into two sections by upright perma-pine posts which prevented vehicular access from one section to the other. Each of the sections had a gateway onto Stanbel Road; the western section was known as the staff members’ car park and the eastern section the council employees’ car park. He said the pot-hole he had been assigned to repair was inside the staff car park a short distance from the gateway giving access to it (marked in D17 as “Western Car park Entrance”). The bitumen in the truck discharged from the rear of the vehicle so he drove the truck into the Staff car park to a position north of the pot-hole. In cross-examination he said the truck was about three or four metres from the entrance into the car park.

The defendant described that the work he and Mr Zammit did to repair the pot-hole took only a few minutes, they both then got back into the truck and the defendant, being unable to turn the truck around, reversed out of the car park. He said he would have “definitely” activated the rotating safety hazard lights which were fixed on top of the truck’s cabin. He identified that photographs P6-P8 in Exhibit D15 show the truck he was driving this day.
The defendant related that he reversed from the car park turning to his right in an arc which brought him to a position on the northern side of Stanbel Road partly across the driveway into the staff car park where he stopped facing west. He said he saw a blue car “coming towards me”, waited for it to pass his position and “a matter of seconds later” he turned his head and saw a motor bike light “a good four or five hundred metres away” approaching his position along Stanbel Road from the east. He said he saw he had “enough room to pull out safely and move down the road heading toward Fender Road”, put on his traffic indicator, de-activated the roof-top hazard lights, drove as quickly as possible to the other side of the road and his truck was wholly positioned within the southern (west bound) carriageway by the time he had travelled “maybe ten metres to the west … (when) I had got three quarters of the way past the office block before the entrance to the main Council (depôt)” travelling at 25 to 30 kilometres an hour.
I interpolate here that the western car park entrance is approximately 740 metres from Main North Road; the entrance to the Council Depôt is approximately 40 metres further to the west.
The defendant said that as he drove across Stanbel Road and onto the west bound carriageway he did not notice any vehicles travelling toward him from the west. He related that when he was at a point twenty metres or so west of the entrance to the Council Depôt he heard a loud crashing noise, looked into his rear driving mirror, saw nothing to account for the noise and then pulled to a stop at the side of the road. He re-activated the hazard lights, got out of the truck and saw the plaintiff’s motor cycle lying in the middle of the road to the rear of his truck.
In cross-examination the defendant said there was a window in the rear of the cabin of the truck through which a clear view could be had of traffic more than a metre or so behind the truck; a rear view mirror fixed to each door of the cabin also gave a view to the rear.
Concerning the call he said he received to repair the pot-hole in the car park the defendant said he and Mr Zammit talked about it because it was not a task which should have been assigned to them – it ought to have been carried out by the crew of another Corporation truck.
The defendant said that on arriving in the car park he “would have” activated the roof-top hazard lights; “Its in our safety training that we have to use the light” and the lights “would have been turned off as I took off from the kerb” having waited, he said for five or ten seconds, for the blue car to pass his position. He denied he was stationary at the kerb for thirty or forty five seconds. He agreed that on 14^th February 1997 he was questioned by an insurance investigator when his memory for events was better than by the time he gave evidence; he said he could not remember, but he probably told the investigator he waited at the kerb for “maybe 30 seconds” for the blue car to pass his position. The record of that questioning is Exhibit P19.
The defendant also agreed that at about 4.00 p.m. on the day of the accident he was questioned by a police officer – it was Sergeant Cooper. Exhibit P18 is the record of the questioning; the defendant was shown and read the document during his cross-examination and said that what it contained is “basically what happened”. It reads in part:
“At about 3 p.m. on Friday the 20^th of September 1996, I was reversing my truck out of the depot, on my way to do a road repair job. As I reversed out onto Stanbel Road I checked both ways to ensure the road was clear of traffic. There were no vehicles in my vicinity. I saw a single headlight approaching my position from the eastern end of Stanbel Road and I estimate that it would have been at least half a kilometre away. The yellow rotating roof lights were activated on the truck at the time.
I continued to reverse out of the yard and then turned the truck to travel west on Stanbel Road. Once I put the truck into forward gear I turned the yellow roof lights off. I then commenced to travel west on Stanbel Road, I would have travelled about 50 metres when I saw a white mazda ute travelling in the opposite direction.”
There was this exchange in cross-examination:
(T.186)
"QIs it the case that you first saw the headlight as you reversed on to Stanbell Road and then continued to reverse.
AI don’t really recall.”
(T.187)
"QThat is different, is it not, to what you have told the court today. Let us go through that statement. ‘As I reversed out onto Stanbell Road I checked both ways to ensure the road was clear of traffic. There were no vehicles in my vicinity.’ Firstly, no mention was made to the police on that day of the blue car being in your vicinity.
ACan’t recall why not.
QThe blue car you say was in your vicinity.
ANot when –
QWell, it was, wasn’t it, because that is why you say you stopped the truck.
AYes, there was a small blue car and when I backed out a small blue car, I don’t know where it came from, it just went past.
QWhy did you tell the police ‘there were no vehicles in my vicinity’.
AI don’t recall.
HIS HONOUR:           He says – the statement is describing a somewhat different path, a different sequence of events than that of his evidence.
MR KERNOT:            It is, yes.
XXN
QHis Honour just raised what your statement to police suggests: that you were reversing the truck out of the car park, you then stopped to check for traffic, it was then that you saw the headlight, and you then continued to reverse the truck. Is that what happened.
AI would have seen the headlight when I checked the road before moving the truck off the kerb; see the road is clear.
QRead the statement. This is suggesting something different, isn’t it. This is what I am suggesting you told the police on the day of the accident.
AOn the day, with a trauma like that, everyone is feeling the pinch. I may have let the car slip, I don’t know, it is a long time ago.”
(T. 94)
"QLooking at your statement to the police which is in front of you, you say there at the bottom of the first page ‘I continued to reverse out of the yard and then turned the truck to travel west on Stanbell Road. Once I put the truck into forward gear I turned the yellow roof lights off. I then commenced to travel west on Stanbell Road. I would have travelled about 50 metres when I saw a white Mazda ute travelling in the opposite direction’.    Will you agree with me there is no mention in that statement of observing the headlights at or about the time you commenced to move forward.
AThat is correct.
QYour evidence today is that you saw the headlights when your truck was parked on the northern kerb and as you were about to move off. That is not mentioned in the statement, is it.
AI would have checked the road to see if it was clear before I took off. If the motor bike was there I would have seen it but –
QAll you told the police on the day of the accident was that you checked both ways as you reversed, saw the headlight and then continued to reverse. If that is the only time that you checked and saw the head lights, and if your vehicle was stationary for 30 seconds, did you check for the motor cycle as you moved off.
AI would have checked as I took off too, I am pretty positive
QWhy didn’t you tell the police that when you spoke to them on the day of the accident.
AI don’t recall.”
It was put to the defendant that he did not execute a reversing movement from the car park as he described but that he had driven forward turning to the right onto Stanbell Road from the Council Depôt, that is the “main depot entrance” so marked on Exhibit D17; he rejected that.
The defendant related that at Mr Hall’s request he had positioned his truck at the point he had completed the reversing manoeuvre and then driven away from there in a re-enactment (which he repeated two or three times) of what he said he did on the day of the accident.
Mr Zammit’s evidence is that having received a call to repair a pot-hole in the staff car park the defendant drove the truck to and into that car park. His memory is that the pot-hole was “just inside the gate” and the truck was brought to a halt so that the pot-hole was about a half a metre to the rear of the truck. He said the roof top lights were operating as he and the defendant set about repairing the pot-hole.
Mr Zammit said that after completing the repair of the hole he and the defendant got back into the truck and the defendant reversed it into Stanbel Road to a stationary position between the entrance gates to the staff car park and the employees car park. From Exhibit D8 the distance between the centre line of the two car parks is 31.5 metres. He said the truck was facing west with its right-hand wheels against the northern kerb and it remained in that position for about 30 to 45 seconds to allow a blue or brown car, travelling from the west, to pass the truck. The defendant then drove the truck “to the other side of the road as quickly as possible, straightened up” and turned off the roof-top hazard lights; as to the lights being turned off he said “I say that’s what would have happened”. He described that the truck did not have a powerful motor and it “took” a while before it was wholly within the southern carriageway travelling west, which he estimated to be at a point opposite what he described as the front doorway to the office building shown in photograph 11 of Exhibit P6 when the truck was travelling at 20 to 30 kilometres an hour. That building abuts the eastern side of the entrance to the depot; Mr Zammit said that, in the photograph, the doorway is obscured by a tree positioned to the front of the white utility (Mr Jonas’ vehicle) shown in the photograph. Mr Zammit related that a very short time after the truck passed that point he heard a bang and saw in the left-hand door mirror of the truck a motor cycle lying under a vehicle parked at the side of the road. The truck stopped, he got out and saw the plaintiff lying on the roadway.
In cross-examination Mr Zammit became, as I observed, unsure about when the roof-top lights of the truck were switched off; he said he was sure that, by means of the door mirror, he saw them operating until the truck passed the depôt entrance, but responded that if the defendant said they were switched off when the truck drove away from the northern kerb of Stanbel Road, “I don’t know. I can’t say”. He agreed that whether and for how long the lights were on was important and that he made no mention of the lights in the statement he gave to an insurance investigator on 14^th February 1997.
Mr Zammit said he has no memory of looking to the east for approaching vehicles as the truck drove away from the northern kerb of Stanbel Road to gain the west-bound carriageway. He agreed he told Sergeant Cooper on 18^th August 1997 that the defendant drove the truck diagonally across Stanbel Road and was wholly within the west bound carriageway by the time the truck “was parallel with the council depot entrance”. He said he did not see the Mazda utility (Mr Jonas’ vehicle) travelling toward the truck from the west until just before the collision – he said he may have been doing some paper work.
Mr Zammit related that after the accident, later in the day when he and the defendant were with the truck at Hawker Road, he saw what he judged to be blood and flesh on the right rear corner of the truck; he washed it off. There is reference to this in his statement to Sergeant Cooper.
Mr Zammit denied that the truck was driven forward into Stanbel Road from the entrance to the Council depôt.
Mr Jonas said he drove his Mazda utility into Stanbel Road from Fenden Road keeping an eye on the tracking path of the trailer he was towing, and on cars parked at the side of the road, as he negotiated the corner and travelled to the east. He said that when his combination was wholly into Stanbel Road he saw, about four car lengths away, a truck travelling toward him in the southern carriageway – he estimated it was east of the entrance to the Council depôt. He said he also saw two motor cycles, their headlights on and to the rear of the truck, coming toward him one of which “overtook the other one and went flying past a lot faster than the other chap was”. He lost sight of the overtaking motor cycle as it came up behind the truck when his (Jonas’) vehicle and the truck began to pass each other; then “the bike appeared to come out behind the truck, cross into my side of the road and hit” the right-hand front side of the utility as he swung it to the left in a reaction to try to avoid the collision. He said that just before the motor cycle appeared from behind the truck onto his side of the road he heard the noise of an accelerating engine. He could not remember whether the roof-top hazard lights of the truck were operating.
In cross-examination Mr Jonas said he required glasses for driving, he was not wearing them on this day and without them he could not see very well. He agreed he made a statement to a police officer on 30^th October 1996 which he signed (it is Exhibit P22) at a time when the events of the accident were fresher in his memory. To the suggestion that he does not now have much memory of the accident he said “The only part I’ve got of the accident, and it stays with me all the time, is the bike coming and hitting the ute”. He said he does not remember telling the police officer he was travelling at 40 kilometres an hour, and as to his estimate (in the statement) that the motor cycle was about 16 car lengths distance from him when he first saw it, and the truck was about 8 car lengths away from him, said he was only “guessing”. He agreed he told the police officer, and it is still his memory, that the approaching motor cycle was travelling at about 70 kilometres an hour.
Mr Jonas agreed he spoke to a solicitor over the telephone about six years ago; some of what he allegedly said on that occasion concerning the accident was put to him but, in the main, he said he could not remember stating what was attributed to him; that being the case it is of little assistance to me, except he agreed he told the solicitor that when he first saw the two motor cycles they were approximately 200 metres ahead of him travelling at a speed he estimated to be approximately 70 kilometres an hour.
Mr Jonas also agreed that on the 3^rd of March 1997 he spoke to an insurance investigator; it is agreed that was transcribed as Exhibit P24 and the investigator, if called, would have given evidence that it accurately records the questions by the investigator and Mr Jonas’ response to those questions. In the document it is recorded Mr Jonas said the motor cycles were “200 metres, it could be a bit further on I’m not sure” behind the truck when he first saw them, that one of the motor cycles seemed to be going a little bit faster than the other and that as his vehicle and the truck drew to the point where they were passing, the truck was travelling “maybe 40 maybe a little bit more”.
Mr Jonas, as he acknowledged, found the events of the collision to be traumatic both at the time it occurred and in the immediate aftermath. In my view his memory of the events is not clear and although he was doing his best I do not feel confident in placing much reliance on his estimates of speeds and distances.
At the date of the accident, Ian David Webb (Mr Webb) was employed as a clerk by the Corporation of Salisbury, working at the Stanbel Road depôt in the building immediately to the east of the entrance to the depôt. He said he was working in an office the window of which looked out onto Stanbel Road. He heard the rattle of a truck and a short time later looked and saw a Corporation vehicle, a bitumen truck, go past and some five to ten seconds later he heard a motor cycle and then a bang.
In cross-examination Mr Webb said that the time between hearing the rattle and then seeing the truck pass his window seemed only a few seconds but it could have been thirty or forty five seconds. He said he assumed the truck had come from the staff car park because it was travelling at a speed of only fifteen to twenty kilometres per hour and the rattle he heard was consistent with the sound made by a truck when it exited from the car park. He did not notice whether the roof-top hazard lights on the truck were operating.
At the time of the collision Mr Raspe was eighteen years old. He worked at the Holden motor car plant in Elizabeth and was on his way to work, riding his motor cycle which he had owned and been licensed to drive for about nine months. His route to work took him along Arcoona Road and then west along Stanbel Road to Fenden Road.
Mr Raspe said that he turned into Stanbel Road from Arcoona Road to travel west and as he did so he saw, in the rear view mirrors of his motor cycle, a motor cycle approaching from the east which he estimated was one hundred metres to his rear, the headlights of that motor cycle being illuminated as were the lights of his own motor cycle, and about three to four seconds later, when he estimated he was about three hundred metres west from Arcoona Road and travelling at about 60 kilometres per hour, the other motor cycle overtook him at a speed of about 80 kilometres an hour. Then when the motor cycle was about fifty metres ahead of him he saw a truck “maybe two hundred metres” to the west of his position;
“The truck was turning to the right onto the road and it was in the middle and the motor cycle that overtook me veered left and then I think it was trying to go on the inside of the truck, but there was parked cars on the side and he veered right and he hit an oncoming car on the other side of the road” (T.318)
He said he cannot be sure whether or not he saw the brake light of the motor cycle come on. He said that when the motor cycle veered left the truck was in the west bound carriageway, close to the centre line of the road. He estimated the motor cycle was about one hundred metres ahead of his position when he saw the motor cycle veer in the way he described, but he said he was “guessing” and he did not know the distance.
In cross-examination Mr Raspe said he does not recall whether he stopped before driving from Arcoona Road onto Stanbel Road, or recall seeing the other motor cycle at that time, but he did not think the motor cycle slowed down after overtaking him.
He described that when he first saw the truck it appeared to him it had come from the other side of the road and was executing a right-hand turn – he could see both the rear and the left-hand side of the truck and that most of the truck was on the east bound carriageway. He had not seen it reverse from premises on the northern side of the road or seen it stationary at the northern kerb. He does not remember seeing any flashing lights on the top of the truck or any indicator light operating.
Mr Raspe said the other motor cycle was, he guessed, one hundred metres away from the truck when he (Mr Raspe) first saw the truck and from that time until the moment of impact between the other motor cycle and the oncoming car three to five second elapsed.
Mr Hall in his report dated 21^st November 2000 (part of Exhibit D15) records he measured the distance between the staff car park gateway and the entrance to the main depot to be 39 metres, and the distance between the staff car park gateway and the approximate point of impact to be 65.5 metres. He said that at his request the defendant, on 7^th August 2000, on three successive occasions reconstructed the movement and speed of the Corporation truck, on the day of the collision, from the northern side of Stanbel Road to the approximate point of impact; Mr Hall said the truck began from a position just east of the staff car park entrance and he photographed the truck as the defendant drove it. The photographs are those numbered 1 to 5 in Exhibit D15. On each of two of the three occasions the defendant carried out the reconstructed manoeuvre Mr Hall timed the truck and averaged the times he obtained to be 5 seconds to travel from the stationary position to be wholly within the west bound carriageway and 9 seconds from the stationary position to the approximate point of impact.

In a subsequent report dated 27^th November 2002 (also part of D15) Mr Hall stated that at an “ordinary” rate of acceleration for a truck, the time taken to traverse, from stationary, the distance between the staff car park entrance and the approximate point of impact would be approximately 11½ to 13 seconds.
I note that Mr Hall does not know and there is no evidence from any other source to indicate whether or not the truck, when driven in the reconstructed manoeuvres by the defendant, was carrying any quantity of bitumen. On the day of the accident the truck had a load of up to a quarter tonne of bitumen; the defendant said that after the accident he, and Mr Zammit, went to Burton Road where they repaired a roadway with bitumen and there was still bitumen in the truck when he later returned it to Stanbel Road depot.
Mr Hall’s opinion is that the motor cycle which the plaintiff was riding (a Yamaha RD 350/250 equipped with a drum rear brake and a disc front brake) and assuming its brake system was effective, could be brought from a speed of 60 kilometres an hour to a stop in a distance of “just over” 60 metres, allowing a two second reaction period and assuming a moderate braking effort (that is a deceleration rate of 0.5g). In his report dated 20^th November 2000 Mr Hall expressed the opinion:
“When the truck began moving from the kerb, the (plaintiff’s) motor cycle must have been a significant distance to the east of its position. Mr Raspe thought that distance was 100 metres.
It was likely then that in the time the truck travelled 70 metres, the motor cycle travelled around 165 metres …
Since the (plaintiff’s) motor cycle could have been brought to a halt within 65 metres, even allowing for a relatively long reaction time, it can be concluded there was sufficient time and distance for Mr Harradine to have slowed his bike sufficient to avoid the necessity to pass the truck when there was oncoming traffic.”
In his second report Mr Hall calculated other stopping distances, postulated upon the plaintiff’s speed being greater (90 kilometres an hour) and his reaction period being shorter (one to one and half seconds).
I accept the defendant’s evidence, which is supported by the evidence of Mr Zammit, that he drove the truck into the staff car park and, having completed the task of repairing the pot-hole in the bitumen, he reversed the truck from the car park into Stanbel Road to a position close to and parallel with the northern kerb of that road where he stopped. According to Exhibit D8 the entrance to the staff car park, at the kerb line, is approximately 6.1 metres wide. Whether the defendant brought the truck to a stop (as the defendant stated) such that part of the truck was across the entrance to the staff car park, or (as Mr Zammit stated) such that it was just to the east of that entrance does not really matter in my view; whichever it was the difference would have been only a few metres.
Reversing the truck in the manner the defendant described was a manoeuvre potentially hazardous to other vehicles on Stanbel Road and it is more likely than not the defendant did look to check for traffic on the road before emerging from the car park entrance. In any event apparently he was able to safely reverse to a position close to the northern kerb line. The defendant’s evidence is that he stopped facing west and waited for a car travelling from the west to pass his position. His estimate in his evidence that he was stationary by the kerb for 5 to 10 seconds to allow the blue car to pass before driving off is in conflict with Mr Zammit’s evidence that the truck was stationary for 30 to 45 seconds. The defendant said he probably told an investigator in February 1997 that he was stationary for “maybe 30 seconds”; that is in the bracket of time Mr Zammit estimated. The defendant told Sergeant Cooper “There were no vehicles in my vicinity” when he was reversing out from the car park into Stanbel Road; I infer the blue car was not visible to him at that time. I find that the defendant was stationary for a time greater than 5 to 10 seconds and likely of the order of 30 seconds.
I reject the defendant’s evidence that before driving away from the kerb of Stanbel Road he saw the light of a motor cycle 400 metres to 500 metres away approaching from the west. Mr Hall’s evidence, which I accept, is that the defendant’s truck traversed the distance from the staff car park entrance to the approximate point of impact in as little as 9 seconds and no more than 13 seconds. That distance was 65.5 metres, so the motor cycle the defendant said he saw would have had to travel approximately 465 metres in 9 seconds or 13 seconds – by my calculation that would require a speed of 191 kilometres an hour or 132 kilometres an hour. On no version of the plaintiff’s speed was he travelling faster than 80 kilometres an hour. Either the defendant (as he implied in his statement to Sergeant Cooper) saw the motor cycle headlight only when he was in the course of reversing from the car park, or if (as he asserted in his evidence) he looked and saw it just before driving off from a stationary position it was considerably closer than 400 metres away.
I am prepared to accept that it is more likely than not the roof-top hazard lights of the truck were operating for some time before the defendant drove the truck from its stationary position. I do not accept Mr Zammit’s evidence that the lights continued to operate until the truck was near the entrance to the Council depôt. Neither the plaintiff nor Mr Raspe saw or remembered seeing those lights operating at the moment when each of them first saw the truck.
An accurate estimate of speed is, by common experience, notoriously difficult to make. Mr Raspe said that when he first saw the plaintiff’s motor cycle it was about 100 metres behind him, and then 3 to 4 seconds later it overtook him at a speed he estimated at 80 kilometres an hour compared with his own speed of about 60 kilometres an hour at a point about 300 metres west of Arcoona Road. Assuming Mr Raspe had been travelling at 60 kilometres an hour for that period of 3 to 4 seconds, he would have covered between 50 and 66 metres so the plaintiff would have needed to travel between 150 and 166 metres in 3 to 4 seconds which could only be done at a speed of 153 to 185 kilometres per hour. Clearly on his evidence that he was passed at a speed of 80 kilometres an hour Mr Raspe’s estimate of time and distance is erroneous.
In my view what Mr Raspe was attempting to describe in estimating the plaintiff’s speed to have been 80 kilometres per hour when he passed Mr Raspe was a higher speed in relation to his own on an assumption that he (Mr Raspe) was travelling at about 60 kilometres per hour. The plaintiff estimated Mr Raspe’s speed to be 30 to 40 kilometres per hour as he overtook him at (he said) 70 kilometres per hour. The plaintiff was not an experienced motor cycle rider, and I see no reason to not accept his evidence that as a “learner” he was conscious of his speed, at least to the extent of staying close to the speed limit. Other than the suggestion, which he denied and I accept his denial, that he was pressing along Stanbel Road to see how his motor cycle performed there was nothing in the evidence to indicate that there was any need for the plaintiff to hurry.
The plaintiff impressed me as a frank, matter-of-fact witness, an impression fortified by there being no challenge of any substance to his evidence concerning his injuries and the effect of them upon his work and other aspects of his life. I accept the plaintiff’s evidence that he accelerated to about 70 kilometres per hour to pass Mr Raspe and then decelerated to continue on at about 60 kilometres per hour.
The plaintiff’s evidence is that he first saw the truck when he was 100 metres “or considerably less” away from it. Mr Raspe “guessed” the plaintiff’s distance from the truck when Mr Raspe first saw it, to have been 100 metres and 3 to 5 seconds later the plaintiff collided with Mr Jonas’ utility.
The plaintiff I find was mistaken when he described the truck to have been rolling forward, nose first, from the entrance to the Council depôt to the kerb line when he first saw it. As I have said I accept the defendant’s evidence that he drove the truck from a position approximately parallel with the northern kerb.
Mr Hall’s evidence is that the defendant’s truck would have taken about 5 seconds to travel from its stationary position to a point where it was wholly within the west bound carriageway, or the time taken would have been 6.5 seconds if he assumed as being correct Mr Zammit’s evidence that the truck was wholly within that carriageway when it was passing the entrance to the Council depôt. In 5 seconds travelling at 60 kilometres per hour the plaintiff would have traversed about 83 metres. I accept the plaintiff’s evidence that he took his gaze from the truck when he thought it had stopped to allow him to pass, and it was not until it was moving across the road that he again focussed on it; he said by that time the truck was up to 20 metres or so from his position.
I have found that the plaintiff’s approach toward the truck was at a speed of about 60 kilometres per hour. The headlight of his motorcycle was illuminated. It is inconceivable that the defendant would not have seen the plaintiff approaching if he had looked before proceeding to drive off, even if the plaintiff was 100 metres from the position of the truck. On his own evidence the defendant’s case was premised on him seeing the light of the motorcycle 400 to 500 metres east from the position of the truck when he drove away from the kerb. That is patently not the case.
If the defendant did look to the east, and saw the headlight of an approaching motorcycle, when he was in the course of reversing the truck from the car park, he remained stationary at the kerb for so long that even if the motorcycle he saw was 500 metres away it would have covered that distance in 30 seconds (at 60 kilometres per hour). As I have said I reject the defendant’s evidence he was stationary for only up to 10 seconds before driving off; it is likely that the defendant’s estimate (to Sergeant Cooper) of about 30 seconds and Mr Zammit’s estimate of 30 to 45 seconds was, in each case, an over estimate but it was long enough I find for the plaintiff to have travelled the greater part of the distance to be within less than 100 metres of the position of the truck before it was driven off to cross into the western carriageway.
I find that the defendant failed to look to his rear before driving off in a manoeuvre which brought the truck into the plaintiff’s path of travel. If he had looked he could not have failed to see the plaintiff’s approaching motorcycle. I have no doubt the defendant was negligent - he was obliged to give way to the plaintiff, he should have remained stationary until the plaintiff, and Mr Raspe, were safely past and not driven into the plaintiff’s path.
As I said earlier in these reasons the plaintiff was not an experienced motorcyclist. If, as in my view he should, he had kept a weather eye on the truck rather than turn his attention away after first seeing it, the evidence of Mr Hall is that the plaintiff would have been able to safely bring his machine to a stop (from 60 kilometres per hour) in a distance of approximately 60 metres. Even allowing for his inexperience, by taking his eye off the truck he was guilty of failing to exercise reasonable care for his own safety with the consequence that he was then confronted with what he described and I accept was making a split second decision when only some 20 metres or so from the rear of the truck to veer first left and then right in an endeavour to pass the truck. Nevertheless it was the defendant’s action, negligently unaware of the proximity of the plaintiff’s motorcycle, and moving into the plaintiff’s path, which created the hazard.
I find the plaintiff was contributorily negligent to which I apportion one third as his responsibility for the collision which occurred with Mr Jonas’ utility.
The plaintiff successfully completed Year 11 of his schooling, deciding to then leave school and try to obtain an apprenticeship in the building industry. During his final years at school he had worked in a supermarket on Thursday night and Saturday morning; he obtained work in the same field until he secured an apprenticeship in painting and decorating about four months after leaving school. Unfortunately the contractor to whom he was apprenticed could not retain him after eight months; the plaintiff secured a job in the paint shop of a motor car manufacturer for three months until he was able to again take up his apprenticeship, this time with the Department of Housing and Construction where he completed his four years training.
The plaintiff then obtained employment in his trade with a builder in the Barossa Valley where he remained for about six months before going to Queensland where, for some six months, he worked in his trade mainly on the Gold Coast.
On his return to South Australia the plaintiff was employed by Authentic Painters and Decorators for about a year and then for about one month he worked part time in his trade with a one man business. That was followed by a period of approximately three months, to in the month of September 1996, when he was unemployed but he had obtained a position as a painter decorator with a Mr Peter Woods to work in the Kadina area, commencing on 21 September 1996 at an hourly rate of $16 (as he remembered) to work for ten to twelve hours per day and likely seven days per week; he said Mr Woods was very busy and he expected his work with him would be on-going.
In the year to 30^th June 1996 the plaintiff’s taxable income was $24,548 (Exhibit P11). That is an average of approximately $472.00 per week.
Prior to the accident the plaintiff had pursued an interest in martial arts for four years, attaining a black belt in that sport, before turning to boxing in which he trained for some ten months; he was to contest his first bout in November 1996. For both martial arts and boxing he had attained a very high level of fitness, his boxing training taking up three nights each week. The plaintiff said, and I accept, that he was at a peak fitness level immediately prior to the accident.
On his admission to the Royal Adelaide Hospital following the accident, the plaintiff came under the care of Mr Anthony Ingman, an orthopaedic surgeon.
By consent, four reports provided by Mr Ingman and dated 19^th July 1999, 20^th April 2000, 24^th January 2001 and 23^rd April 2002 were tendered. Neither Mr Ingman nor Dr Timothy Hill, a psychologist, Dr John Meegan, an occupational physician, a Ms Anne Morgan, an occupational therapist, or Mr Robert Foreman, a vascular surgeon, reports from each of whom were also tendered by consent in the plaintiff’s case, were required to attend for cross-examination. Those reports (except Mr Foreman’s report which is Exhibit P26) are contained in Exhibit P7. The defendant, by consent, tendered reports provided by Mr Peter Fry, an orthopaedic surgeon, and a joint report provided by Ms Briony Lock and Chris Goulding, both psychologists working in the field of vocational assessment; those practitioners were not required to attend to be cross-examined. Their reports are contained in Exhibit D13.
The plaintiff was detained in the Royal Adelaide Hospital until 30^th October 1996 undergoing operations and being treated for his injuries. In his report dated 19^th July 1999 Mr Ingman wrote he observed, and confirmed with x-rays, that on admission the plaintiff had comminuted fractures of the midshafts of the right femur, fibula and tibia the latter of which was complicated by a large open wound; there was also a graze over the left knee. On the day he was admitted the plaintiff underwent an operation to clean and debride the open wound and to stabilise the fractures of the femur and tibia by means of locked intramedullary nails. Mr Ingman describes the plaintiff’s treatment and progress to 30^th October 1996 during this first period the plaintiff spent in hospital; there were to be others later.
“The wound over the tibia was left open and covered with a dressing. Three days later, on the 23-9-96, another operation was carried out in which the fractured bone was covered by a free vascularised muscle flap. Unfortunately the circulation to the flap did not remain adequate, despite an attempt on 25.9.96 to re-establish blood flow. The flap was therefore removed and the wound was managed by continued dressings and split skin grafts. During this time he continued to require regular analgesics and a further blood transfusion. The wound became infected but slowly healed, except for a small area. He remained in the Plastic Surgery ward, mobilising in a wheelchair. By 25-10-96 he was beginning to walk with two crutches. On 20-10-96 it is recorded that he had some infection in the skin graft donor area on his right thigh, and infection caused some itching and discharge in an area on his scrotum. Multiply (sic) resistant Stapylococcus (sic)aureus bacteria were cultured and he was referred to the Dermatology Department for further review. He was discharged from hospital on 30-10-96.”
The vascularised muscle flap mentioned by Mr Ingman was taken from the plaintiff’s abdomen. He has unsightly scarring in that area and also on the right thigh from where the skin graft was harvested. Concerning this first period in hospital the plaintiff’s memory is it was very painful, and he was depressed and saddened by the failure of the vascularised flap to take and the onset and continuation of infection.
Following his discharge from hospital the plaintiff regularly attended as an out-patient for replacement dressings to the infected areas of his thigh and right shin. The fracture healing callus in the tibia was progressing only slowly; infection continued and bone absorption persisted. By May 1997 the plaintiff was able to take full weight on his right leg. Mr Ingman judged that necrotic bone on the medial side of the tibia “was slowly being absorbed by natural processes, so that the infection might eventually resolve. He was therefore advised to continue as he was, applying dressings to the discharging sinus. No antibiotics were being used as the MRSA organism was only sensitive to toxic antibiotics.”
Upon review in October 1997 the plaintiff was able to walk freely on the right leg, intermittently using one crutch, but although the fracture appeared united low grade infection persisted. Mr Ingman decided to allow the fracture to further consolidate and then remove the intramedullary nail, often a cause of infection. In May 1998 the nail was removed. By September 1998 the plaintiff was walking without any walking aids but infection was still present. Mr Ingman reported on 19 July 1999:
“A sinogram xray was ordered to delineate the infected area better, with a view to proceeding to explore the wound and curette any infected bone. Unfortunately shortly after this, in mid September 1998, he fell and refractured the tibia through the area of weakness at the level of the sinus. He was managed at first in a plaster cast but when he was seen again on 10-11-98, the fracture remained unhealed and the discharging persisted. Shortly after that he was readmitted for surgical exploration and a piece of dead bone was removed. A plaster cast was reapplied. The infection then subsided quickly and the sinus healed, but the fracture did not”.
As to this mishap causing a refracture to his leg, the plaintiff said it occurred when he stepped down from a verandah at his house; he felt instant pain and a friend took him to the hospital. Mr Ingman’s opinion, which I accept, is that immediately before the incident in September 1998 “(the plaintiff’s) fracture had healed although not soundly” and the fracture is to be “attributed largely to the initial fracture” in 1996.

Mr Ingman relates that on 17^th March 1999 the plaintiff underwent an operation in which a bone graft and a synthetic calcium material was applied to the tibial fracture: “A one centimetre segment of fibula shaft was removed, and an external fixater was applied to stabilise the tibia. (The plaintiff) initially made good progress but on 4-4-99 he was complaining of increasing pain in his leg, and this was later diagnosed as an aneurysm of the tibial artery, which was repaired by vascular surgery on 9-4-99. It was thought that the aneurysm may have developed from the original site of the 1996 vascular anastomosis”.
The plaintiff was again mobilised on crutches and by June 1999 he could bear almost full weight on his leg without pain, the wounds remained well healed and there was no sign of infection. In July 1999, the radiographs showing a reasonably sound union of the tibia and that the bony defect in the midshaft had filled to some extent, the external fixater was removed.
Mr Ingman concluded his report dated 19^th July 1999 by observing that a final assessment could not be made for at least six months and “During all of the past and this future period (the plaintiff) would not have been capable of any more than intermittent light physical work”.
The plaintiff said that before he re-fractured his leg in September 1998 he was feeling quite good; there was still infection but “I thought I was probably beating things”. He said that in the period before he re-fractured his leg he worked for about a month with Peter Woods, but not for whole days, doing some pre-painting preparation work and painting windows all of which he described as “light duty stuff”.
On 13^th August 1999 the plaintiff was at a nightclub with friends. As he went to buy drinks he was pushed from behind, his leg struck a stair and he fell. Taken to the Flinders Medical Centre, an x-ray “showed a new fracture line at the distal end of the area involved in his previous fracture”. A plaster back-slab was applied and three days later an above the knee plaster cast was put on. Because of the plaintiff’s history of infection in his leg, conservative management was preferred. The cast was removed on 9^th November 1999 when clinical and radiological examination suggested the fracture had healed. Upon a review in December 1999, the plaintiff reported that he felt his leg had become unstable; it was found that the fracture was mobile. Another cast was applied, but that did not correct the mobility. There being no sign of infection recurring, surgical treatment by internal fixation with an intramedullary nail was recommended by Mr Ingman “although it was known that it would be a difficult procedure in view of the various boney abnormalities which had developed in his tibia”. On 8^th March 2000 the operation was carried out which Mr Ingman described thus in his report dated 25^th April 2000:
“Incisions were made at the knee and over the fracture, and the medullary canal was opened by a combination of intramedullary reaming and exposure through the fracture. A 360 x 9 mm Ausofix nail was inserted and as the fracture appeared stable to rotation, only distal locking was performed. Post operatively he was advised to take weight on the leg as tolerated, and he was discharged from hospital on 11-3-2000, walking with crutches. X-ray on 21-3-2000 showed that the fixation remained satisfactory.”
Mr Ingman’s opinion, which I accept, is that the incident on 13^th August 1999 when the plaintiff was pushed and struck his leg on a stair appeared unlikely to have been “substantially violent, so that it would not have been sufficient to refracture the bone if normal healing had occurred. The further treatment should therefore be regarded as a continuation of the consequences of the original injury in 1996”. Mr Ingman concluded the report dated 25 April 2000 by expressing the opinion “There is now a good chance the fracture will unite … There is a reasonable likelihood that after three months from the date of his last surgery (the plaintiff) will be able to walk without crutches and consider undertaking some light work … It would be desirable that the intramedullary nail be left in place permanently or at least for several years”.
When he was discharged from his first period in hospital the plaintiff went to live with his parents – he needed their care and assistance being unable to live independently. His parents carried out for him those activities which his need to get about on crutches made it impossible or difficult for him to do; he said that in the early period of his recuperation his parents did everything for him except showering him or attending to his toilet.
I interpolate here that in his Statement of Claim the plaintiff did not allege he needed and was provided with the assistance of his parents. The defendant not opposing the application, I gave leave to the plaintiff to amend his statement of claim by adding, as a new sentence at the end of paragraph 7 “The plaintiff has required and received the gratuitous assistance of his parents as a result of the said injuries”.
The plaintiff lived with his parents for approximately six months, then moved into a flat they found for him.
Before he refractured his leg the second time the plaintiff enrolled for and completed a course to train as a cellar hand. He then applied for work as a cellar hand at a winery (Richmond Grove); he was accepted but he could not take up the job because he refractured his leg.
By June 2000 the plaintiff was able to walk with the aid of only one stick. On 26^th September 2000 an x-ray showed that the fracture had united, the plaintiff had a full range of flexion in his knee and there was no sign of the recurrence of infection in the leg. The plaintiff said he was not feeling very strong, compared with his condition before the accident in 1996, but he was keen to get back to work. In about September 2000 the plaintiff obtained a job with Black Silver Master Painters, repainting dwellings, working eight hours per day for four days a week. He said the work caused painful swelling in his leg and he experienced pain in his lower back, so he was cautious in what he did, with the result he was not as productive or as efficient as he should have been. For a couple of weeks he tried working for a full week of five days but he did not cope well. The work required him to be on his feet all day and involved climbing ladders. After three months he was laid off with the explanation there had been a down-turn in business, but his own assessment is it was on account of his lack of productivity.
In his report dated 24^th January 2001, which concerned the plaintiff’s progress to 26^th September 2000, Mr Ingman wrote:
“(The plaintiff’s) level of general strength and mobility should slowly improve and a final assessment should be possible when he is seen as his next appointment (in six months)… It is anticipated that the pain he has when walking will subside but there will be some permanent stiffness of his ankle and some of loss of muscle strength in his leg. It is possible that he will ultimately resume his former occupation as a painter and decorator, but this will be with some difficulty in regard to climbing and carrying heavy weights. With recreational activities, I doubt that he will recover sufficiently well to properly indulge in his former vigorous activities of martial arts and boxing”.
In April 2000 the plaintiff had consulted Dr Hill who assessed that the plaintiff was suffering from an adjustment disorder with depressed mood. In his report dated 24^th January 2001 Mr Ingman wrote:
“I agree that (the plaintiff) has suffered adjustment disorder with depressed mood, as he has unfortunately undergone unexpected complications. On several occasions, just as he thought he was recovering, he was again faced with many months of further treatment and physical restriction”.
In January 2001 Ms Morgan assessed the plaintiff’s functional capacities. That was soon after the plaintiff’s employment with Black Silver Master Painters had been terminated. In her lengthy report concerning that assessment Ms Morgan set out the plaintiff’s physical limitations and their effect upon the work the plaintiff could undertake, noting that the plaintiff was considering finding alternative work to painting and decorating.
The plaintiff obtained a job with Phoenix Direct, a direct marketing company – he was trained for a week in “general sales pitches and customer service skills, and the method of approach before you talk to the person”. The job involved “door-knocking” private homes and being on his feet for up to seven hours, constantly walking, with which he did not cope well; after about three weeks he resigned. The plaintiff then, in late 2001, tried working as a financial planner – his employer was National Finance and Trading Group. That involved an hour or so being trained in the morning followed by “two or three hours cold canvassing to small businesses” to arrange for certified financial planners to interview those who expressed interest in those services. The work was less physically demanding than his previous marketing job, but no “sales” eventuated and his remuneration being on a “commission only” basis, after three months of no income the plaintiff gave up. He had been “working out” in a gymnasium with light weights to strengthen his leg and maintain general fitness; he was feeling stronger than he had when working with Black Silver Master Painters – he decided to endeavour to go back to painting and decorating. In February 2002, he obtained a position as a sub-contractor with Prime Painting Contractors, by whom he is still employed, being paid at the rate of $20 per hour.
As a sub-contractor his employer provides, on site, ladders, planks and climbing equipment. The plaintiff works in a team of five, but confines himself to working a total of twenty four hours on three days each week, the days being nominated by his employer. For three weeks the plaintiff tried working four days a week, each of eight hours, but he experienced increased pain and swelling in his leg and found it difficult to maintain a satisfactory productivity level. He is assisted by the other members of the team, who work five days each week and sometimes on Saturday. He related: (T59-60)
"AGenerally I don’t like to be bending down doing skirting boards all day or kneeling too much – which aggravates my leg and back – so they will help me out there; although occasionally I will do that sort of work. Roof work I find difficulty, and excessive climbing. So generally there can be a – we can sort of look after each other in that way and find alternative work if something is of distress or I’m finding it uncomfortable. It’s quite flexible.
QThe Prime Painting Contractors, what sort of work do they do, we have talked about commercial, housing.
AThey do new work and old work.
QThe renovation work.
AYes, heritage work, and renovation work.
QAre there any activities that cause you particular problems of those activities that you are required to do on a day by day basis; you mentioned some of them.
AYes. Excess lifting can be a problem – or which we don’t have a lot of climbing up and down ladders all day or on planks can aggravate my leg and also lower back. And bending, say all day excessively.
QTo your knowledge do the other workers there work three day weeks.
ANo
QWhat do they work to your knowledge.
AThey work full five days with some Saturday work also.
QDo Prime Painting appear to be busy painting contractors.
AYes, definitely. He has actually just taken on another painter recently due to the increase of work.
QYou have told us at one stage for two weeks you worked four days; have you been asked to work greater hours than 24.
AYes, he has asked me.
QHave you accepted those invitations.
ANo
QWhy not.
ABecause my leg can’t cope with that.”
Asked why it was he went back to painting, the plaintiff said it is a trade he knows, he excels at it and derives satisfaction from it. In his view were he to be fully fit he could earn more than the $980 gross per fortnight he is presently paid, which he judges is about the same as he would earn as a starting wage in clerical jobs or more sedentary occupations, working full-time.
The plaintiff called Raymond Mueller (Mr Mueller) a proprietor of Prime Painting Contractors which has been in business for eighteen years. Mr Mueller took the plaintiff on as a painter/decorator in February 2002. The plaintiff told him he could work only three days per week because of his injuries, and Mr Mueller accepted that. He said he has noted the plaintiff appears to experience soreness in his work, and he (Mr Mueller) avoids giving the plaintiff tasks which would require him climbing onto roofs, using stepladders or climbing extension ladders. He described the plaintiff to have a good attitude and “he works hard”.
Mr Mueller’s evidence, which I accept, is that the other sub-contractors engaged by him, and working with the plaintiff, are also paid $20 per hour, but they work for up to six eight - hour days and on some days they work eleven hours in his business, hours which would be available to the plaintiff were he fit enough; he said his business is presently very busy but even in the winter time, when there is a down-turn in business, there is always work available. The subcontractors to his business receive neither holiday pay nor paid sick leave.
The plaintiff’s scarring is described in Mr Fry’s report dated 8^th June 2001:
·A very long posterio-lateral upper torso scar from muscle flap surgery and much the same affect over the front of the abdomen from the same cause.
·Various scars around the right hip area at the bone-graft donor site.
·A scar just below the lower pole of the knee from the tibial nail insertion.
·Very gross leg scarring from the earlier grafting that had been done, with slight thickening of the midshaft tibial area from the fracture and the bone grafting, with various other scars on the lateral side of the leg from the surgery done there.
The scarring was shown to the court. That on the lower right leg in particular is very disfiguring. The plaintiff said his embarrassment about the scarring has now receded somewhat although he still tries to hide the scars, but their presence is a continuing reminder of what has happened to him. He experiences pain and swelling in the area from which the vascularised muscle flap was taken. He also experiences a sensation of pins and needles in his right foot, with swelling, pain, tightness and a burning sensation in his right leg; those symptoms are a consequence of trauma and damage to two of the main arteries in the lower part of his leg, with a minor problem to the third, described by Mr Foreman in his report. Mr Foreman’s opinion is that the plaintiff “has basically lost the peroneal and posterior tibial arteries around the area of the trauma … retaining only one vessel, the anterior tibial, which has significant stenosis at the end of the proximal third” that could lead to significant problems in the plaintiff’s lower leg should he develop any minor hardening of the arteries as he becomes older.
The plaintiff’s right leg is one inch shorter than his left leg, which is corrected to an extent by using an orthotic device in his right shoe; he has four such devices for his different footwear which he replaces each year at a cost of $125.00 each. That is a cost he must meet for the rest of his life. The plaintiff said that the use of the device has reduced his experience of hip and back pain. In his report dated 16 April 2002, Mr Fry referred to the plaintiff’s complaints that back pain became acute in late 2001 and to the report of a C/T scan which he (Mr Fry) had reviewed. The C/T scan was taken on 26 October 2001. Mr Fry’s opinion is that the plaintiff’s back aches are:
“… possibly due to some disturbance of the lumbo-sacral level as a result of the accident. That particular point is unclear. However I think it can be reasonably said that the present onset of symptoms is not due to the motor accident in any reasonable way, it relates to intrinsic factors both in and around the disc, the rupture occurring due to these. Fortunately for Mr Harradine the sciatic effects are subsiding, they will probably subside more when an epidural injection is eventually done. He is however managing at work, and he will certainly need to be careful of his back. If anything, the back problems and the sciatic effects appeared to be more important at this present moment than the much more extensive damage to the right leg”.
I find that the radiological signs in the plaintiff’s spine are not attributable to the collision.
In his final report dated 23^rd April 2002 Mr Ingman wrote:
“(The plaintiff’s) treatment is now complete and no further surgery is planned. The intramedullary nail should be left in situ permanently, or at least for several years. Despite the severe nature of the original injury and the multiple complications, he has achieved a relatively good result. However, as is to be expected from such a severe injury, significant permanent impairment remains from scarring and muscle damage. He is able to walk and stand reasonably freely but he is restricted to some extent in regard to climbing and to a greater extent in regard to running or vigorous activity. It is unlikely that he will be able to satisfactorily resume his previous recreation of martial arts, and he will probably always have a slight limp after prolonged walking. If he does resume his former occupation as painter and decorator, it will be with a significant reduction in efficiency.”
Since the date of his accident on 20^th September 1996 the plaintiff, as I find, has experienced much pain and suffering attributable not only to the original injuries to his right leg but also the subsequent refracture of the leg at or near the site of the original fracture to the tibia. He was plagued with persisting infection at the site of the injury and has undergone several operations, necessitating periods in hospital and treatment thereafter, and has spent lengthy successive periods of time recuperating separated by set-backs on the two occasions he refractured his leg. These mishaps in the course of his recovery from the original injury brought about a psychological disorder which continued until some time in early 2002.
The plaintiff’s sporting and social activities have been severely curtailed by the ongoing disability in his leg which precluded him, and will continue to preclude him, from vigorous activity of the kind he enjoyed as a young man before the accident. His right leg is shorter than his left by one inch, he experiences pain in the leg if he stands on it for prolonged periods or stresses it by jogging for even a relatively short distance. The blood supply to his leg is limited by the consequences of the operations and treatment he has undergone, an effect of which is the potential for the future problems in the leg described by Mr Foreman. There is gross scarring to the lower leg, and a lesser degree of scarring to the thigh of the leg and to parts of his lower torso; he is, not unreasonably, conscious of and embarrassed by the scarring as to some of which he must avoid exposure to sunlight. By reason of his continuing disability the plaintiff, I accept, is limited in a number of ways in his ability to carry out in full the activities of his trade and he has to rely on others to assist him in his work; that makes him anxious and apprehensive about his future and affects his enjoyment of life.
It is possible that the plaintiff may have to undergo an operation to remove the intramedullary nail in his leg but if that is carried out it will not be for several years. There is no evidence before the court as to what temporary incapacity or period of recuperation such an operation may entail, or as to the cost of it. Mr Ingman contemplates that the nail may be left permanently in situ. Having regard to the plaintiff’s past experience of operations on his leg the probability is the operation will not be undertaken, barring some unforseen event. Nevertheless the plaintiff is at risk of arthritis occurring in the leg, and not related to the nail, as I understand, at some earlier time in the future than would have been the case but for his injury in September 1996.

On a scale of 0-60 I assign the numeral 25 for the plaintiff’s non-economic loss. The parties agree the multiplier is $1,520.
Except for some light, part-time work the plaintiff was able to do with Mr Woods for about one month just prior to the time he refractured his leg in September 1998, the plaintiff, I find, was wholly incapacitated from any work until September 2000 when he was employed by Black Silver Master Painters for four days per week for three months. In 1999 he had retrained as a cellar hand, but that did not convert to paid work because the plaintiff refractured his leg a second time in August 1999 before he could take up the job he had arranged.
There is no direct evidence how much the plaintiff was paid for his work over about one month in 1998 with Mr Woods. As to Black Silver Master Painters I note from Exhibit P12 that in the financial year to 30^th June 2001 there were “PAYG Withholding Credits” of $1,183 which, I infer, was the amount paid to the Australian Tax Office by Black Silver Master Painters on behalf of the plaintiff, but that is insufficient, without more information, to identify with any precision how much the plaintiff was paid for that work. I will assume in the defendant’s favour that the plaintiff’s rate was about $16 per hour for thirty two hours per week for sixteen weeks, say $8,200 less tax of $1,183 producing approximately $7,000. I will also assume the same hourly rate in relation to the plaintiff’s work with Mr Woods.
I accept that but for the plaintiff’s accident it is more probable than not the plaintiff would have been able to earn $16 per hour with Mr Woods in the period 21^st September 1996 to 31 January 2002. Striking a balance between unpaid holidays or sick leave or periods of unemployment on the one hand, and on the other that the plaintiff may have been able to work “overtime” produces a gross amount for that period of say $153,000; deducting tax produces about $122,000, less about $8,500 net of tax, the plaintiff earned with Mr Woods, Phoenix Direct and Black Silver Master Painters, is $113,500.
I accept the plaintiff’s evidence that the work he did with National Finance & Trading Group, between about September 2001 and February 2002, produced no income for him. Since February 2002 he has been employed in Mr Mueller’s business. I accept Mr Mueller’s evidence that at least since February 2002 full-time work would have been available to the plaintiff had he wanted it and was fit to perform it.
In November 2002 Ms Morgan expressed the opinion “Based on Mr Harradine’s presentation and level of function his current three full days of painting work is considered close to his maximum capacity and he has done quite well to resume this level of work in my opinion”. Some of the restrictions Ms Morgan assessed the plaintiff to have were ascribed by her to a low back problem. That, as I have found, accepting Mr Fry’s opinion, is not attributable to the plaintiff’s accident, but I do not consider that were low back symptoms to have been the plaintiff’s only problem that that would have prevented him from full-time work with Mr Mueller.
Taking a broad approach to Mr Mueller’s evidence, I estimate that from February 2002 to the date of judgment the plaintiff could have earned about $61,000 gross for a basic week of five days each of eight hours. Assuming that unpaid holiday or sick leave or periods of unemployment would be offset to some extent by available “overtime”, the difference between that amount and that which the plaintiff in fact earned is about $30,000 gross – after tax say $24,000.
I accept the plaintiff’s evidence that his disabilities have so far precluded him from working more than twenty-fours per week for a gross income of $480 per week. There was some evidence (Ms Briony Lock’s report in Exhibit D13) that in January 2001 a range of jobs “within the sedentary/light physical demand category”, for which the plaintiff she judged was potentially suited, would have yielded a wage of $385 to $513 per week. That appears to accord with the plaintiff’s evidence that what he earns for part-time work with Mr Mueller approaches what he could earn for full-time work in more sedentary occupations. On that basis, in my opinion, the plaintiff is to be compensated for his economic loss for the period September 2001 to judgment having regard to the difference of $24,000 net I referred to in the preceding paragraph.
As to the plaintiff’s future economic impairment, Mr Ingman in his most recent report opined that the plaintiff had achieved a relatively good result but in his occupation as a painter/decorator he will work “with a significant reduction in efficiency”.
I accept that the plaintiff cannot squat or kneel on his right knee, and he has difficulty stooping and trouble with prolonged standing or walking, all of which I find are as a consequence of the injury to his right leg. Those movements, together with ladder climbing, all feature in the tasks a fit and able painter/decorator would be expected to perform in that work.
On the evidence, particularly the plaintiff’s statements to various medical and other professionals who have reported upon him, the plaintiff is still coming to terms with his disabilities and is unsettled by this litigation process. He has shown considerable determination in the past to adjust to his condition and pursue his chosen trade. His abilities in his work are such that he is seen by Mr Mueller as a valuable tradesman. It is likely that the plaintiff will always need to have, or seek out, a sympathetic employer so the plaintiff will be at risk of periods of more unemployment than would otherwise have been the case. However I think it is more probable than not he will be able to extend his weekly hours of work beyond those he has managed in the past, probably to at least four days per week, which he was able to work with Black Silver when he was more incapacitated than he is now. I accept that he is probably not going to be able to establish his own business as a painter/decorator, so he will be confined to the sort of sub-contracting role carried out by him, and those who presently work with him. In my assessment it is most unlikely that the plaintiff could, either by retraining or otherwise, turn to some other occupation which would return a greater income than he is capable of earning in his present trade.
The present value of $1 per week to age sixty five years, at 5% is $852.50 (Luntz: Assessment of Damages For Personal Injury and Death (4^th Edition) Table 3B).
As the plaintiff’s pre-accident history shows there have been periods of unemployment in the past in his chosen occupation. Some allowance must be made for that and other vicissitudes of life which would have affected the plaintiff’s economic capacity in any event. On the other hand the plaintiff has been deprived of the capacity to fully exploit his pre-accident capabilities (including the availability of overtime) and he will be at a disadvantage in competing for available work. There must necessarily be a broad approach when endeavouring to balance these and other factors in assessing damages.
The plaintiff’s special damages are agreed in the sum of $77,868.40 (revised at 8 May 2003 by a document replacing Exhibit P27). $75,009.05 of that sum has been already paid by or on behalf of the defendant; only $277 has been paid (in about June 2001) by the plaintiff, in relation to which (as I understand) interest is claimed. The plaintiff’s future medical or the like expenses are, on the evidence, limited to $500 per year (for life) to replace orthotic devices.
I assess the plaintiff’s damages as follows:
Non economic loss
Section 35A Wrong’s Act
Scale   25   x $1,520   $38,000.00
1.Special damages
Past  $77,868.40
Future (orthotic device)               $ 9,025.00  $86,893.40
2.Economic Impairment
Past   $130,000.00
Future   $140,000.00   $270,000.00
3.Gratuitous assistance (Beck & Farrelly)  $2,500.00
The total is $ 397,393.40 to which I add $27,500 as a lump sum in lieu of interest on those components of the award attracting interest. The aggregate is $424,893.40 which is to be reduced by one third for the plaintiff’s contributory negligence, producing $283,262 (to the nearest whole dollar). After allowing $75,009.05 for amounts already paid by or on behalf of the defendant there will be judgment for the plaintiff against the defendant in the sum of $208,252.95.
I will hear counsel as to costs.

[2003] SADC 111

30 July 2003