Kim v Weliwatte
[2014] ACTSC 184
•24 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kim v Weliwatte |
Citation: | [2014] ACTSC 184 |
Hearing Dates: | 7 July 2014, 8 July 2014, 9 July 2014, 10 July 2014 |
DecisionDate: | 24 July 2014 |
Before: | Ashford AJ |
Decision: | Judgment for the defendant; plaintiff to pay indemnity costs. |
Category: | Principal judgment |
Catchwords: | TORTS – negligence – road accident cases – liability of drivers of vehicles – failure to look out – pedestrian accidents DAMAGES - measure and remoteness of damages in actions for tort – measure of damages – personal injuries |
Cases Cited: | Podrebersek v Australian Iron and Steel Pty Ltd (1985) HCA 34 Marien v Gardiner [2013] NSWCA 396 Lyons v Fletcher [2014] NSWCA 67 |
Parties: | Jae Myoung Kim (Plaintiff) Weliwattage Don Isuru Weliwatte (Defendant) |
Representation: | Counsel: A. Black SC, D. Shillington (Plaintiff) K. Rewell SC (Defendant) |
| Solicitors: Porters Lawyers (Plaintiff) Moray & Agnew (Defendant) | |
File Number(s): | SC 156 of 2012 |
The claim
Jae Myoung Kim claims damages of the defendant as a result of a motor vehicle accident on 30 September 2010 at about 6.35 pm. At that time he was a pedestrian on his way home from work, having alighted from a bus in La Perouse Street, Red Hill. The defendant, Weliwattage Don Isuru Weliwatte, was driving along La Perouse Street, Red Hill, in a motor vehicle owned by a church organisation where he was studying. As Mr Kim crossed the street he was struck by this motor vehicle and sustained personal injury.
The issues
Liability is in issue as is the question of the assessment of any damages claimed. The defendant also raises the issue of contributory negligence on the part of the plaintiff.
Background of the plaintiff
The plaintiff is presently aged 49 years. He is a married man with two sons. He was born in Korea and came to Australia in 1997 to undertake PhD studies in business management. In Korea he had obtained a bachelor's degree and had then undertaken a MBA in 1994. He obtained his doctorate in 2003.
The plaintiff was employed by ANU as a casual staff member in 2002, teaching business and management, including international business, where he remained to 2008. He then returned to Korea as a consultant with the Carnegie Institute where he remained until 2010 when he returned to Australia. He looked for employment again at ANU and also at ADFA, hoping to secure long-term employment, but without success. He took up employment at S & K Car Park Management on 7 September 2010 working in customer service five to six days a week. This job involved him assisting customers with parking machines and dealing with complaints.
The plaintiff travelled to and from work by bus. At the time of the motor vehicle accident he was living in Beagle Street, Red Hill. He said it was his custom to alight from the bus in La Perouse Street. This is a residential area. There is a pedestrian island in the middle of La Perouse Street which is a short distance in the opposite direction to the plaintiff's home address from that bus stop.
The accident
The accident occurred on the evening of 30 September 2010 at approximately 6.30 pm. The plaintiff was wearing dark trousers and a jumper, the uniform from his employment. He was carrying a black briefcase. He said that on the bus journey he had been listening to his MP3 player utilising earphones. He said he switched off the player before leaving the bus and carried the earphones in his hand. He said he started to cross La Perouse Street. He checked each way for any traffic and said he saw nothing, and thus began to cross the road. He remembers nothing further until being in hospital.
In cross‑examination the plaintiff said his usual practice was to get off the bus at the stop in La Perouse Street and then walk to the pedestrian refuge which he agreed was away from the direction of his home. He said he would not cross the road until he had checked that there were no cars coming in either direction. He said his custom was to wait for the bus to leave, check for any other vehicles, and then cross the road. He agreed it was possible to see along the road for quite some distance.
The plaintiff thought it was becoming dark at the time and the street lights were on. He agreed it was possible to see motor vehicle headlights along that road if vehicles were present. He maintained that it was his custom to use the pedestrian island, even though it meant walking away from his residence to do so. He maintained he had switched off the MP3 player before alighting from the bus and was carrying his earphones in his hand.
The defendant, Weliwattage Don Isuru Weliwatte, is a trainee priest with Missionaries of God. He has completed some seven years' training and will be ordained as a deacon this year. In 2010 he was living in a residence owned by the church in Red Hill, and he had been living there for some time. On 30 September 2010 he was driving a church‑owned vehicle, a Ford Falcon motor vehicle registration 2‑QZ‑443, to his residence. His front seat passenger was Rembert Fernando, also a student priest.
Mr Weliwatte said he was familiar with the Red Hill area and the route, having driven along that road many times before, including in the evenings. At around 6.30 pm he was driving along La Perouse Street. He said it was then dark. He had his headlights on low beam. He said he was aware buses travel along that street and he knew there was a traffic island in the area. He estimated his speed at about 50 to 55 kilometres per hour. He said the street lights were on.
Mr Weliwatte said he realised his motor vehicle hit something when he heard the sound of something hitting his windscreen. He braked hard. He agreed he had been chatting to his passenger during the journey, but said he had been concentrating on his driving and was looking at the street ahead. He got out of the vehicle and saw a person on the ground. Neither he nor his passenger had a mobile phone. They stopped a vehicle coming towards them, and that person rang for police and ambulance assistance. Mr Weliwatte said the person on the roadway was wearing dark clothing and had earphones hanging around his neck.
In cross‑examination Mr Weliwatte agreed he was aware there was a bus stop in the area and that it was likely there would be pedestrians around at that time of night. He described the area as being dark, that he had his headlights on low beam, and that the street lights were on. He said he did not believe it necessary to turn his lights to high beam, mainly because there was street lighting in the area and he saw no reason to turn his lights to high beam in that area. He said the plaintiff hit his vehicle on the right side mirror of the car, and then the right side windscreen.
Rembert Fernando was the front seat passenger in the car with Mr Weliwatte. Mr Fernando gave evidence. He said he was familiar with the Red Hill area. He has a driver's licence. He said that at about 6.30 pm they travelled along La Perouse Street. He described the lighting conditions as being dark or dim. The vehicle headlights were on low beam and the street lights were on. He had been chatting with the driver, but not at the time of impact.
Mr Fernando said he heard a bang on the driver's side of the vehicle. He said there were no other vehicles around and he had not seen any people. The vehicle was stopped, he got out of the vehicle and saw a person on the road. He saw an oncoming car which he stopped and police and ambulance were called. He said the person on the road was wearing black clothing and had headphones on his cheek. He did not see where the pedestrian came from, but said he came on the right side and onto the vehicle.
Senior Constable James Stokan gave evidence. As at 30 September 2010 he was attached to the Collision Investigation Reconstruction Team in Traffic Operations in ACT Policing. He had completed a pedestrian collision course prior to that date. He arrived at the accident scene at approximately 7.30 pm. The first police officer to attend at the scene had been Senior Constable Lane Brian and he was still present when Senior Constable Stokan arrived.
Constable Brian showed Constable Stokan a video playback from the video he had recorded on arrival at the accident scene. This portrayed the defendant's motor vehicle with its headlights were on, and portrayed the scene when Constable Brian had arrived. Constable Stokan then undertook investigation and inquiries at the scene and took photographs. These were tendered as exhibit F. Constable Stokan was unable to locate any conclusive evidence of the exact location where the impact took place. He photographed a number of personal items on the roadway, including a pair of spectacles, a shoe and a briefcase.
Constable Stokan observed the pedestrian refuge relative to the position of the bus stop to be further from Beagle Street. The vehicle was stationary between the intersection of Beagle Street and La Perouse Street on the opposite side to the bus stop about 20 to 30 metres west of the bus stop. There were blood stains on the road to the east of the Golden Grove intersection.
Constable Stokan spoke to the driver and to the passenger. He conducted an interview which was recorded on CD (the transcript is exhibit J). The interview with Mr Weliwatte noted, inter alia, that Mr Weliwatte had been driving along La Perouse Street, heard a noise and saw a man on the front of the windscreen, then braked and got out of the car, and saw that the man was on the road. He described the area as being “very dark...very small light, except for that light, there are no street lights”, and that he had been travelling at 50 to 50 kilometres per hour. He said the plaintiff had hit the car on the right side of the car.
Constable Stokan said he believed it to be a driver's choice whether to have lights on high beam or not in such a location. Mr Weliwatte told him he didn't see the man before hitting him. He “just hit him and then only...applied my brakes because I heard I hit someone”. The transcript of an interview records the plaintiff to have been wearing black clothing and that, "I saw his earphones were still on his ear. In the ear, not on. They came off obviously. There was one in."
Constable Stokan interviewed the plaintiff at the hospital on 18 October 2010. He recorded the plaintiff to state, inter alia, that he had exited the bus on the south side of La Perouse Street, intending to cross the street and walk to his home in Beagle Street. He recorded the plaintiff to say that he looked both ways and saw no headlights and then crossed the road. He was wearing dark‑coloured clothing, and the street lighting in the area was poor for that time of night. The plaintiff denied wearing earphones at the time of the collision, claiming they did not work. The police notebook of Constable Brian, tendered as exhibit 6, records in very brief, "Pedestrian dressed in black, earphone in, iPod type, lighting nil." There was no evidence before me as to whether the headphones were connected to any device or not.
Summary of the factual matters
From the evidence of the plaintiff, the defendant, Mr Fernando and the police witnesses and other material, I extract the following factual matters. The accident occurred at about 6.35 pm. Civil twilight ended at 6.31 pm. Nautical twilight commenced after civil twilight. The evidence of the defendant and his passenger was that it was dark. The plaintiff described it as being dusk and becoming dark at the time.
The expert witnesses on liability, Mr Joy and Mr Urquhart, referred to the definition of "civil twilight" as being the limit at which twilight illumination is sufficient under good weather conditions for terrestrial objects to be clearly distinguished and, in very plain terms, not dark, but not full daylight. That is, general outlines of ground objects may be seen. All of this is of course dependant on other factors including weather conditions and artificial lighting. Considering all the evidence, I have no reason not to accept the evidence of the defendant and Mr Fernando that it was dark at the time of the accident. I accept the defendant was driving his Ford Falcon in a westerly direction on La Perouse Street at about 50 to 55 kilometres per hour.
The plaintiff alighted from the bus at the stop on the northern side of La Perouse Street near the intersection of La Perouse Street and Golden Grove. The plaintiff was wearing dark trousers and a dark jumper. At the time of the accident, the plaintiff lived in Beagle Street, Red Hill, and it was necessary for him to cross La Perouse Street to walk to his home. The plaintiff began to cross La Perouse Street. He saw no motor vehicle coming from either direction. At some point past the centre of the road the plaintiff was struck by the right front corner of the defendant's vehicle and hit the right windscreen. The defendant's vehicle was wholly within the westbound traffic lane at the time. His headlights were on low beam.
All of these matters I accept. It is difficult to ascertain the precise point of impact. The plaintiff asserts his usual practice was to walk towards the pedestrian island which would mean he walked in the opposite direction to his house in Beagle Street. In his statement to police, recorded in the AFP case summary notes (exhibit 2), the plaintiff makes no reference to that island, but says he had alighted from the bus, looked both ways, saw no headlights and then cross the road. In his statutory declaration, of 31 January 2014, tendered as exhibit 3, the plaintiff makes no reference to walking to a pedestrian island.
Having considered all the evidence before me, I have come to the conclusion that, on the balance of probabilities, it is unlikely the plaintiff walked to the pedestrian island in the course of crossing La Perouse Street. It seems likely that the plaintiff got off the bus and began to walk across La Perouse Street. He was at no stage aware of the approach of the defendant's vehicle. Accepting the defendant's headlights to have been on low beam, Senior Counsel for the defendant submits the plaintiff did not check for any oncoming traffic before leaving the footpath to cross the road.
The defendant also submits that the plaintiff was wearing his earphones and listening to his MP3 player and thus did not hear the approach of the defendant's vehicle. The plaintiff denies that he was using his earphones and listening to his MP3 player, saying that he had the earphones in his hand and had switched off the device before alighting the bus. As previously noted, the police record of Constable Brian records, "Earphones in, iPod type." On 18 October 2010 Constable Stokan recorded the plaintiff to have denied wearing earphones and claimed they did not work. Mr Weliwatte, in his police interview, noted the plaintiff to have earphones still in his ear following the accident. In his evidence, Mr Weliwatte said he saw earphones hanging around the plaintiff’s neck. Mr Fernando in his evidence said the plaintiff had earphones hanging on his cheek. The evidence of those witnesses contradicts the evidence of the plaintiff. Looking to the totality of the evidence of earphones, the conclusion I draw on the balance of probabilities is that more probably than not the plaintiff did have his earphones still in place in his ears when he got off the bus.
Whether the MP3 was switched on or off is unclear, but I draw the conclusion that having the earphones still in place, the plaintiff did not hear the approach of any vehicle. I am therefore satisfied that the plaintiff was not paying proper attention to his surroundings. As previously noted, I accept the defendant's headlights were on low beam. The defendant said he did not believe it necessary to turn the lights to high beam as it was in an area where there was street lighting.
The two expert witnesses, Mr Joy and Mr Urqhart, gave concurrent evidence. There was agreement between them as to the defendant's estimate of his speed, being consistent with the physical evidence and in their calculations of stopping distances in respect of the coefficient of friction of the road surface. Both experts agreed the braking distance required for a vehicle travelling at 50 to 55 kilometres per hour to be 14.9 to 18 metres. They agreed the point of impact to be 21.8 to 25.6 metres to the east from the vehicle's position in the roadway. I accept that evidence. In respect of the distance required for a pedestrian to be observed by a driver with headlights on low beam, Mr Joy was of the opinion the distance was 40 to 45 metres. Mr Urquhart thought the distance was 24 metres plus or minus 2 metres. Senior Counsel for the plaintiff submitted that Mr Joy's view was to be preferred.
Mr Joy observed the design of headlights on a Ford Falcon motor vehicle were such as to have supplementary lights built into the motor vehicle headlight. He thought that with the lights on low beam and 45 metres back from where the collision ultimately occurred, the plaintiff was there to be seen by the defendant and should have been detected. Mr Urquhart maintained that any ambient light was insufficient for the defendant to identify the plaintiff as a hazard. If the headlights had been on high beam, Mr Joy considered a pedestrian detectable at a distance of 100 metres. Mr Urquhart's view was that a pedestrian would have been detectable at a distance of 40 metres, plus or minus four metres.
The experts also differed in their view as to perception response times, Mr Joy postulating 1.1 seconds, and Mr Urquhart 1.9 seconds. At 1.1 seconds perception response, the distance travelled at 50 kilometres per hour would be 15.3 metres and at 55 kilometres an hour, 16.8 metres. The distance from perception to halting on that time frame would have been 30.2 metres at 50 kilometres an hour and 34.8 metres at 55 kilometres per hour. On the 1.9 second calculation, the total distance from perception to halting would have been 41.3 metres at 50 kilometres per hour and 47 metres at 55 kilometres per hour.
Senior Counsel for the defendant submitted that the flaw in Mr Joy's reasoning of 1.1 second reaction time was that it was unrealistic and based on a factually inappropriate study, having been a daylight study concerning drivers who were aware that they were being tested for their reaction times. There is force in that argument. In respect of 1.9 second reaction time, Mr Urquhart used a software program which permitted the input of variables into the circumstances of the accident, including the angle at which the pedestrian approached the vehicle, the degree of light or darkness and other factors. I accept that as being a proper basis for making such an assessment in preference to the study used by Mr Joy.
Exhibits 7 and 8 are diagrams of headlight mapping utilising software produced by a road safety researcher, Dr Jeffrey Muttart, to calculate perception response times and the distance from the driver at which the plaintiff would enter the driver's headlight beams. I accept Mr Urquhart's calculations to be more case-specific. Based on his evidence, there is nothing the defendant could have done to avoid the collision even if he saw the plaintiff immediately by looking at the plaintiff at exactly the right time and perceived him to be a hazard.
It has been suggested the defendant should have had his headlights on high beam at the time of the accident. He did not, as he did not believe it necessary in that area. Constable Stokan believed it was a driver's choice to have the car’s headlights on high beam or low beam in that area. Mr Joy believed that if the defendant's lights were on high beam, then he would have detected the plaintiff from at least 100 metres away. Mr Urquhart agreed that the use of high beam would have improved the range of vision available to the defendant, including to the right hand side, but considered that the distance available to the defendant to stop and avoid the collision was still insufficient.
Having reviewed the expert evidence, I find that the plaintiff was crossing the roadway wearing dark clothing and did not observe the approaching headlights of the defendant's motor vehicle coming from his left side. He was not directly in front of the defendant's vehicle when he was struck. He was approaching the motor vehicle on the right side with the headlights on low beam. The plaintiff would have come into the defendant's range of vision at about 24 to 26 metres. Had the defendant observed the plaintiff at exactly the right place and at exactly the right time, the defendant may have seen the plaintiff but his perception response time was still not sufficient to allow him to brake to avoid a collision.
I am persuaded the plaintiff was not paying attention to his surroundings. If the earphones were in his ears, as they appear to have been, even if there was no music playing, then his likelihood of hearing the defendant's motor vehicle would have been reduced. I am not satisfied that he did check for any oncoming vehicles, nor to see if there were any headlights.
I have been referred to decisions of the Court of Appeal in Marien v Gardiner [2013] NSWCA 396, and Lyons v Fletcher [2014] NSWCA 67. The defendant submits that even if the defendant could have and should have seen the plaintiff earlier, and his failure to see the plaintiff amounts to a breach of a duty of care, that breach was not causative of the collision. In Marien the plaintiff was walking along a roadway directly ahead of the defendant's vehicle with his back to that vehicle. Issues in that case included whether the driver was negligent in not having his headlights on high beam and, on the assumption that the driver was not negligent in having his lights on low beam, whether the collision and injury would have occurred if the driver had been watching the roadway and seen the pedestrian.
Marien can be distinguished from the present claim on the facts. The accident in Marien occurred in a small country town at 5.30 am. The motor vehicle lights were on low beam. There was one street light which apparently did not provide additional light to the driver of a car who remained reliant on the car’s headlights to detect objects or pedestrians on the road. It was pitch black. There was no other traffic and nothing to contraindicate the use of high beam. The Court of Appeal stated at paragraphs 35-36:
[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident. The exercise of reasonable care requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. That in turn requires simultaneous attention to and a consideration of a number of different features of what is already or may later come to be ahead of the vehicle's path.
[36] The driver is not, however, required to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events.
The Court found that in the circumstances of that case, the driver was negligent in not switching the car’s lights to high beam.
Senior Counsel for the defendant in the present case submits that the plaintiff approached the defendant's vehicle from the right side, and the difficulty in seeing the plaintiff early enough to stop could not have been cured by having the car’s lights on high beam based on the evidence given by Mr Urquhart. There was nothing the defendant could have done to avoid the collision, even if he saw the plaintiff at the very first moment the plaintiff was recognisable as a hazard. I accept that submission.
In Lyons v Fletcher the plaintiff suffered injury when she was struck by a motor vehicle driven by the defendant. That accident occurred at 12.40 am on Gunnedah Road, Tamworth. The plaintiff was affected by drugs and walking along the road. This was not a residential area. There were two roundabouts. The plaintiff was on the road between the two roundabouts which were very well lit and 425 metres apart when the defendant's vehicle struck her.
It appears the plaintiff had jogged across the road on a path at right-angle to the driver and approached the driver from his right. The driver had his lights on low beam and did not see the plaintiff until impact. It was submitted he should have had his lights on high beam in the circumstances of the surrounding conditions. The Court of Appeal held it was a breach of the driver’s duty of care not to utilise high beam, however, on the basis of the expert evidence it would have made no difference if high beam had been activated. The defendant would still not have had time to react and avoid colliding with the plaintiff, as by approaching the defendant's vehicle from the right the plaintiff put herself in a position where she could not have been seen in any event.
On the facts of the present claim, it was dark and the plaintiff wore dark clothing. He approached the defendant's vehicle from the right side and across the centre of the road. He did not see the defendant's vehicle, even though its headlights were on low beam. He probably had earphones in place. Accepting the evidence of Mr Urquhart, as I do, I am satisfied the accident was not avoidable because of the plaintiff's conduct of walking and continuing to walk into contact with the defendant's vehicle.
I am satisfied there was nothing the defendant could have done to avoid the collision, even if he had seen the plaintiff before impact, accepting Mr Urquhart's evidence. If his lights had been on high beam, I do not believe he could have seen the plaintiff in time. The use of high beam in a residential street in Canberra is purely a driver's choice. At 6.30 pm, even though it was dark, neither the driver nor the police thought it a requirement. The difficulty in seeing the plaintiff early enough to stop could not be cured by the use of high beam on acceptance of Mr Urquhart's evidence, and the defendant did not have time to see the plaintiff and avoid him, even if his lights had been on high beam.
I therefore conclude that the plaintiff must fail on liability.
Contributory negligence
Notwithstanding the conclusion I have reached, if I am wrong on liability, it is necessary for me to assess contributory negligence and also to make an assessment of damages and I will do so fairly briefly. Senior counsel for the defendant submits the plaintiff's negligence to be in the order of 75 per cent if there was any breach of the duty of care by the defendant. Senior counsel for the plaintiff assesses this at 30 to 50 per cent, saying that in the circumstance where the defendant had his lights illuminated, such a finding is inevitable.
The principles of contributory negligence are set out in Podrebersek v Australian Iron and Steel Pty Ltd (1985) HCA 34 which states:
A finding on a question of apportionment is a finding upon a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion.
In the present claim I assess the respective culpability of the parties at 75 per cent for the plaintiff and 25 per cent for the defendant on the basis that if the defendant had found it prudent to have his headlights on high beam and been looking in the direction of the plaintiff, he may have seen the plaintiff and been able to take evasive action. However, accepting the plaintiff to have been in dark clothing, stepped onto a roadway without looking and had his earphones in his ears, the major responsibility still lies with the plaintiff.
Assessment of damages
In looking to damages, some heads of damages have been agreed by the parties. These are:
· Past out-of-pocket expenses - $28,691
· Past domestic assistance - $38,600
· Future out-of-pocket expenses - $20,000
· Future domestic assistance - $156,087
· Fox v Wood - $15,300
No agreement has been reached on economic loss, past or future, or on general damages.
The medical evidence.
The plaintiff was admitted to the Canberra Hospital on 30 September 2010 and was in intensive care for a period, being discharged from hospital on 8 October 2010. He suffered complex facial and skull fractures extending to the base of his skull, a left fronto-parietal-occipital subdural epidural haematoma, and right parieto-occipital and left frontal cortical contusions. He also had some orthopaedic injury. On admission he had a reduced Glasgow Coma score. He did not require surgery, but was managed conservatively.
Dr D. McDowell, neurosurgeon, assessed the plaintiff and prepared a report of 8 November 2010 detailing the treatment afforded him in hospital (exhibit C, page 32). It was noted that during the plaintiff’s time in hospital his conscious state improved and a post‑traumatic amnesia assessment demonstrated reasonable cognitive function. Progress cerebral imaging on 3 November 2010 demonstrated resolution of his extradural haematoma, persistence of various skull fracture lines, and normal cerebral anatomy.
On review in the neurosurgical outpatients clinic on 15 December 2010 the plaintiff reported dizziness on changing posture, anosmia, altered sense of taste, and difficulty in speech. The subdural haematoma had largely resolved. He was referred to a rehabilitation specialist. In December 2010 it was noted the plaintiff had a possible right supraspinatus tendon tear and an ultrasound was organised. It was also noted the plaintiff had suffered fractured right ribs, right knee injury, and left ankle injury. He was referred to a speech pathologist for assessment in January 2011 and was provided with speech pathology assistance over a period of time.
An assessment was made that he was fit to return to work on 14 February 2011, performing modified duties three hours a day five days a week. However, the plaintiff said he was unable to do the work in that he went to work on two days but felt like vomiting and could not continue. He has not resumed any employment since that time, nor does it appear that he has actively sought any work.
In February 2011 the plaintiff went to Melbourne to be with one of his sons who is attending university in that city and did not return to Canberra until later in 2011. During that time the plaintiff said he remained nervous, depressed and was virtually unable to do anything. He suffered nightmares and felt that he could not function at all. On return to Canberra he and his wife moved to a new apartment near his wife's place of employment. His other son also moved to Melbourne, but one son is now back in Canberra.
The plaintiff said he continues to experience pain in his left hip, right knee, right shoulder and ankles. He said his memory is poor. He has no concentration. He suffers headaches and has problems sleeping. He has lost his sense of smell and taste. He also said his speech is disorganised. He finds it hard to get organised, or to be logical, and he has difficulty in finding appropriate words.
Orthopaedic assessments
An ultrasound of the plaintiff’s right shoulder did indicate a possible small insertion articular surface tear of the subscapsularis (exhibit C, page 51). Impingement was noted. Dr Le Leu, occupational physician, thought him to have significant right shoulder impairment, but thought this would improve (exhibit C, page 58). In October 2011 Dr S. Patten, orthopaedic surgeon, examined the plaintiff (exhibit C, page 83). He thought the left hip to have a small labial tear, but did not believe this to be a major cause of his problems. He thought local anaesthetic and steroid injections under imaging would be warranted.
Dr J. Talbot, orthopaedic surgeon, saw the plaintiff on 21 March 2013 at the request of the defendant's solicitors. He gave evidence by phone. On examination of the plaintiff he found some wasting of the right shoulder girdle. He sighted x‑rays and scans which had been performed. He thought there to be minor ligamentous injury to the left hip, subacromial bursitis of the right shoulder, bilateral irritable ankle joints with no major skeletal injury and an injury to the right great toe. He thought that with some treatment the plaintiff should be able to return to a near normal lifestyle in respect of any orthopaedic matters.
All in all, accepting the plaintiff to have suffered some orthopaedic injury in the motor vehicle accident, it appears he has largely recovered from the effects of those injuries and with appropriate treatment and in time it appears that he will suffer little residual effect from injury to his ribs, right shoulder, left hip or ankles.
Of more concern, however, is the effect of the head injury. It is clear the plaintiff suffered a traumatic brain injury, including a fractured skull and facial fractures, as well as the subdural haematoma and brain contusions as previously detailed. It is also clear there was a period of post‑traumatic amnesia. The medical evidence as to the ongoing sequelae from that head injury is not as clear cut. It seems there was resolution of the subdural haematoma, and also healing of the fractures.
The difficulty arises as it is necessary to attempt to assess ongoing sequelae from that traumatic brain injury. Post‑traumatic amnesia appears to be accepted as having been somewhere around three days. Formal cognitive function testing was attempted. It is conceded by senior counsel for the plaintiff that the lack of cooperation in testing by Dr Langeluddecke, and the unexpected and unaccepted performance by the plaintiff on formal testing by Dr Lahz does not assist the plaintiff's cause. Each of them believed the plaintiff to have psychological issues superimposed upon his testing.
Dr Langeluddecke, a clinical psychologist, saw the plaintiff for a joint examination at the request of the parties in May 2013 in the hope that on a joint examination a determination could be obtained of any residual cognitive defects some 32 months post injury. Her report (exhibit 5, page 1) sets out the results of the testing. She thought the results to be invalid due to inadequate effort and cooperation with testing on the part of the plaintiff. She did not believe cultural, language or emotional factors sufficient to explain his lack of cooperation.
Dr Langeluddecke reviewed all the clinical material relating to the plaintiff’s treatment for injury. She thought his English language skills to be excellent at interview, and his vocabulary reasonably sophisticated. She thought the level of ability demonstrated on his cognitive tests devoid of credibility. Her opinion following testing was that the profound wide‑ranging cognitive impairments and slowing demonstrated by the plaintiff in formal testing were devoid of credibility in light of the severity of the brain injury, and the memory capacity and language skills demonstrated at interview. In keeping with this his performance was grossly unsatisfactory on validated measures of effort and response bias. She thought the primary explanation to be malingered neurocognitive dysfunction. She thought it impossible to ascertain if the plaintiff had any genuine cognitive impairment or psychological difficulties due to symptom exaggeration and inadequate cooperation and effort on testing.
Previous neuropsychological testing had been done by Louise Vernieux, clinical neuropsychologist, in June and July 2011, and a report of 22 July 2011 was tendered (exhibit H). This of course was some nine to 10 months post injury. She reviewed medical reporting to that time relating to treatment. She thought his cognitive profile consistent with his documented brain injury of a moderate to severe kind but thought his recovery to still be in the early stages. She thought a review should be completed or conducted in 12 months' time. This does not appear to have been done by her.
Dr Lahz gave evidence by phone. Her report of 16 December 2013 was tendered. She is a rehabilitation physician. She had the benefit of perusing reports of Dr Cameron, consulting physician and rehabilitation, and also saw Dr Langeluddecke's report. In her reporting she reviewed the treatment afforded the plaintiff and the reports prepared. She also interviewed one of the plaintiff's sons.
Dr Lahz recorded present symptoms of dizziness, headaches, sleep disturbance, panic attacks, bouts of anxiety, reduced short‑term memory, and loss of concentration. She agreed there to have been a traumatic brain injury of at least a moderate to severe nature. She did agree, however, with Dr Langeluddecke that the cognitive complaints were disproportionate to the severity of the injury sustained. Given that the period of post‑traumatic amnesia was of short duration, she thought it unusual the plaintiff could provide little detail of his treatment, but she did not think him to be malingering. In giving evidence, she agreed one of the most reliable predictions of cognitive disability was the period of post‑traumatic amnesia, but as there was no reliable result of testing, it was difficult to quantify. She agreed the plaintiff had not performed credibly on testing to her. She thought him to have been comfortable with her. She agreed the plaintiff to have told her that he kept up with his academic reading.
Assessment of this plaintiff is very difficult. He gave his evidence with the assistance of an interpreter in the Korean language, however whilst his speech was slow at times, he did not always utilise the interpreter, and I was of the impression that his grasp of the English language was quite good. Indeed, I thought he demonstrated good use of language and his grasp of concepts was good, and indeed eloquent at times. He is clearly an educated man. He obtained a PhD on corporate governance in Korea. He worked at ANU as an assistant lecturer for a period of time before returning to Korea to work at the Carnegie Institute. Thus I can assume him to have been an intelligent, educated man with skills in the verbal and written language prior to his injury.
The plaintiff’s PhD thesis was supervised by Professor Peter Drysdale, emeritus professor of economics and head of the East Asian Bureau of Economic Research and the East Asian Forum of the Crawford School of Public Policy at ANU. He gave evidence.
Professor Drysdale described the plaintiff as being a very competent researcher when he was working with him. Prior to returning to Korea, he confirmed the plaintiff had worked as an assistant lecturer at ANU at salary level 5. He said on return to Australia the plaintiff had told him he was looking for academic work and he sought to assist him in that search, giving him some introductions. He thought there were a number of positions in the area for which the plaintiff would have been suitable, although the positions were not terribly common. He thought that if the plaintiff had obtained employment as a lecturer in 2010, then his normal progression would possibly have been to senior lecturer or associate professor. He agreed it likely the plaintiff had returned to Korea in 2008 because he had not been able to secure a full‑time academic role in Canberra, presumably because of the rarity of such positions.
The plaintiff's wife and son also gave evidence. Mrs Kim is in full‑time employment. She was thus unable to say how the plaintiff spends the majority of his time during the day. She agreed he has a computer, books and the like on his desk. She said he watches television. She described him as being very active and family-oriented pre-injury, and a generally happy person who was keen on sport. Post-injury she noticed a loss of sense of smell and taste, and thus a loss of the ability to enjoy food and an inability to play sport, and she thought him to be vague and forgetful.
The plaintiff’s son Joseph presently lives in Melbourne. He described his father as being very quiet since injury, and that he did not play sport and liked to be alone.
In assessing general damages, as I said, I accept the minor orthopaedic matters as previously detailed. In respect of the head injury, I accept the plaintiff did suffer a traumatic brain injury including facial and skull fractures, and brain haemorrhages. I accept there was a period of PTA of about three days, and the plaintiff required hospitalisation and laser treatment as an outpatient.
In respect of the continuing sequelae of that head injury, however, it seems to me the plaintiff is grossly exaggerating his disabilities. Clearly there was some generalised cognitive deficit on initial neuropsychometric testing. It seems clear it was expected this would see significant improvement over time. The plaintiff defeated the assessment by Dr Langeluddecke through his lack of cooperation for whatever reason. The conclusion that the plaintiff was underperforming is unavoidable. As a consequence, the degree of any present cognitive impairment is unclear.
The plaintiff's presentation in court was complex. As I noted, his language skills and comprehension appeared quite satisfactory to me and in keeping with his level of education.
General damages
I do accept there to have been brain damage, and thus the possibility of continuation of cognitive defects of some kind. In assessing his general damages, I am prepared to assess this at $200,000.
Past economic loss
Turning to past economic loss, at the time of injury the plaintiff's earnings were $720 net per week. The plaintiff clearly was unfit for work for a period of time. The plaintiff's calculation of loss in that position from 30 September 2010 to 30 September 2011 at $720 per week, being 44 weeks, is assessed at $31,680, and I accept that amount.
From that time it is claimed the plaintiff may have obtained a position as a lecturer and earned $80,000 per annum, or $1200 net per week, and the loss is calculated at $124,800, and from 1 July 2013 to date as a senior lecturer earning $90,000 per annum or $1322 net per week with the loss calculated at $70,066 being a total post wage loss of $226,546 and a loss of superannuation at $24,920. The defendant assesses past wage loss at $900 per week from 30 September 2010, to 29 May 2013 being $121,500, and from 30 May 2013 to date at $450 per week in the sum of $26,100 with past loss of superannuation at $16,236.
The defendant's calculations are postulated on a supposition that the plaintiff was having difficulty in securing an academic post. It is also submitted that he had prospects of seeking better employment than the work in a car park, and thus submit a figure of $900 to be realistic. From the time the plaintiff was assessed by Dr Langeluddecke, the defendant says the plaintiff had a significant residual earning capacity, and I accept that to be so. I therefore come to a conclusion that I should accept the defendant's figures as being a proper assessment of the plaintiff's past economic loss. I assess past economic loss in total, including superannuation, at the sum of $163,836.
Future economic loss
Coming to future economic loss, the plaintiff submits that he would now be working as a senior lecturer and earning approximately $100,000 per annum, or $1442 net per week, less 15 per cent for contingencies. The defendant submits probable future earnings to be approximately $1200 per week as a lecturer, but that the plaintiff in any event has a residual earning capacity of $800 per week. Thus any loss is calculated at $400 net per week to age 67, less 15 per cent in the total sum of $242,386 plus superannuation of $34,611.
Having considered all the material before me, I have come to the conclusion that the plaintiff's capacity for academic work is compromised as a result of his injury, but nevertheless there are many jobs which the plaintiff could properly perform in accordance with his present capacity. To that end I accept him to have a significant residual earning capacity for employment. He has made no attempt to seek any kind of work. Given the uncertainty, I am however prepared to assess his future economic loss as a buffer in the sum of $300,000.
As a general recap, I assess general damages at $200,000; past out-of-pocket expenses at $28,691; future out-of-pocket expenses at $20,000; past domestic assistance at $38,600, future domestic assistance at $156,087, Fox v Wood damages at $15,300; past economic loss at $147,600; superannuation for past economic loss at $16,236, future economic loss at $300,000 inclusive of superannuation, which makes a total of $652,514. That sum must be reduced by 75 per cent for contributory negligence.
Orders
The order of the court are:
(i) Judgment for the defendant.
(ii) Plaintiff to pay the defendant’s costs. Costs to be paid on an indemnity basis from 21 January 2013 to 24 July 2014.
| I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Ashford. Associate: Date: |
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