Kirkbright v The State of South Australia No. DCCIV-96-760 Judgment No. D18

[1999] SADC 18

GRANT ANDREW KIRKBRIGHT V THE STATE OF SOUTH AUSTRALIA

[1998] SADC D18
Judge C R Lee
Civil

1 On 27 July 1993, the plaintiff was driving his Ford Falcon motor car in the carpark of a shopping centre on Peachey Road, Davoren Park.  The front near side wheel of his car broke through a weakness or dropped into a hole in the bitumen surface of the carpark.  The weakness or hole was caused by a burst water main of the E & W S Department.  The plaintiff sustained an injury to his right knee.  Other consequences, mainly psychological, followed.  He claims damages for negligence against the defendant.  His special damages have been agreed as to quantum, but otherwise all issues remain open for determination.  Hereafter it will be convenient to describe the Department as the defendant.
2 The plaintiff was driving into the sun at the time of the accident, and all that he saw at the last moment was the glare of water.  The accident happened at about 4.10 or 4.15pm.  The plaintiff opened the door and, as he was reaching back into the car, the angle of the car caused the door to swing shut against the outer aspect of his right knee.  The water main in question was made of cast-iron with a cement lining, and was laid in August 1965.  The defendant’s control room for receiving complaints and despatching help was situated at Thebarton.  A telephone operator would receive the call and assess the degree of urgency.  Four telephone operators and two radio operators were employed per shift. The telephone operator would fill in a job card, key relevant information into a computer, and take the card to the radio operator.  The radio operator would then despatch an emergency water-man or other personnel as appropriate to attend to the problem. 
3 Various computer records of the defendant disclose that, amongst a number of communications in and out of the control room on 27 July 1993, were the following:
11.42am              call in re Peachey Road
  2.54pm             call in re Port Ellen Court
  3.24pm             call in re Peachey Road
  3.30pm             call out to despatch water-man to Port Ellen Court
  3.31pm             call in re Minnamurra Drive
  3.38pm             call out to despatch water-man to Minnamurra Drive
  4.13pm             call out to despatch water-man to Peachey Road.

4 The times of calls in are times which were automatically recorded by the computer when information was entered by the telephone operator.  The delay between the call in and the computer entry was normally two or three minutes.  The call in at 3.24pm regarding Peachey Road came from a Mr or Mrs Knight.  The computer entry reads "LOR", meaning "leak on road".  The telephone operator who took the call, George Nikolic, gave evidence that he was aware at the time that the problem was in the carpark of a shopping centre.  He regarded the problem as an emergency and deserving of priority attention.  He was unaware that a call had been received earlier that day in relation to Peachey Road.  His estimate of the number of calls which he took per day was 250.
5 It is likely, and I find, that the call from Knight at 3.24pm concerned the problem which confronted the plaintiff at 4.10pm or 4.15pm.  This must mean that the period which elapsed between the receipt of the call from Knight and the call out to the water-man was in the order of 50 minutes, and that it commenced and finished either side of 4pm.  The emergency water-man who attended the carpark, Sean Taylor, said that his official starting time was 4pm, although his normal practice was to get to his depot five or ten minutes early.  His recollection, although a little vague, was that he received the call by telephone when he was still at the depot.  The radio operator, Robert Bitmead, said that an emergency water-man’s shifts were the same as the shifts for persons in the control room, namely afternoon shift between 3.00pm and 11.00pm, nightshift between 11.00pm and 7.00am and morning shift between 7.00am and 3.00pm.  Bitmead said that a leak on a road could mean a number of things including a burst water main, a report of a leak on a road is a serious matter, and it is "a big possibility" that the control room unsuccessfully attempted to contact someone at the depot before 4.13pm.  Bitmead’s last point may explain why the call in at 2.54pm re Port Ellen Court and the call in at 3.31pm re Minnamurra Drive were dealt with more promptly, despite the evidence of the records and Mark Campbell that they were less urgent.
6 On that evidence, I think that the following observations can be made:

1. Having received a call at 3.24pm about a leak at Peachey Road, the defendant was, or should have been, alert to the possibility of a burst water main. 

1. The possibility of a burst water main in an area used by traffic gave rise to a foreseeable risk of accident and injury.

1. A delay of 50 or so minutes in despatching personnel to the scene was an inadequate response to the risk.

7 In the absence of any other explanation proffered by the defendant, I infer that the inadequate response was the result of a breakdown or deficiency in procedures in the control room or depot of the defendant or of a failure in the performance by one or more of the defendant’s employees of their duties. To describe the inference another way, a delay of 50 or so minutes, given the nature of the emergency and the absence of evidence from the defendant to the contrary, would not have occurred without a breach of duty on the part of the defendant or its employees: see Jones v Dunkel (1959) 101 CLR 298 at 312 and Nominal Defendant v Haslbauer (1967) 117 CLR 448 at 452-453.
8 I find that the plaintiff’s injuries were the result of the defendant’s negligence.
9 In the event, I need not consider the other limb of the plaintiff’s case on liability, namely that the accident, when considered in the context of two other bursts to the same section of water main in July 1993, attracts the doctrine of res ipsa loquitur.
10 I turn now to the issue of damages.
11 The plaintiff’s injuries were not a consequence of his driving in any relevant sense (s35A(5) of the Wrongs Act 1936 and Clyne v Gulbin (1995) 65 SASR 397), and so his damages fall to be assessed at common law.
12 The plaintiff is 38 years of age.  Since leaving secondary school at the end of Year 10, he has worked in a variety of unskilled and semi-skilled jobs, both permanent and casual. He married his first wife in 1982, and they had two children before separating in 1985.  In 1986 he went on to the sole parent pension to look after the older child.  Thereafter until his divorce in 1990, he worked in casual and seasonal employment for an average of about four months per year.  From May or June 1992 until he was retrenched in February 1993, he worked in casual work with Ausco as a labourer in the metal shop and roofing section.  At the time of the accident, he had been hoping to obtain full time permanent work with Ausco.  But when Ausco offered him further casual work in September 1993 for at least three months, he was unable to obtain a medical clearance.  He married his then partner in 1997.
13 To return to the accident, the plaintiff’s home was near the carpark where the accident happened, so he walked home.  His initial symptoms were headaches and pain in the knee and neck.  He consulted his GP, Dr Amin.  Dr Amin ordered xrays and prescribed anti-inflammatories and physiotherapy.  After two or three weeks, the plaintiff also began to feel pain in his middle and lower back.  As well, he developed a gastric intolerance to his anti-inflammatory medication.  He also began to suffer from sleep disturbance due to an increase in weight.  In 1996, he was referred to the Pain Clinic at the Royal Adelaide Hospital.  He has been examined by a variety of specialists.  Despite extensive treatment and rehabilitation in the form of medication and supervised exercise and swimming, his symptoms have continued.
14 It is common ground amongst the doctors that the dominant problem is a condition of psychological stress.  In this context, some of the plaintiff’s background must be mentioned.  He was one of seven children.  He remembers, at about the age of six, being hurt and angry when he was wrongly accused of stealing money from a lost wallet.  In 1980, his father died of cancer apparently due to exposure to Agent Orange in Vietnam.  In 1983, he was involved as the victim of mistaken identity in a scuffle with police.   In 1985, a sister contracted viral encephalitis and suffered permanent brain damage.  In 1987, a brother died from cardiomyopathy.  In 1990, another brother died from complications following appendicectomy.  In January 1993, his eldest brother died from septicaemia and renal failure.
15 The plaintiff believes that the deaths of his father and three brothers were unnecessary and the result of poor medical management.  He is angry at the defendant’s role in the occurrence of his own injuries, and believes that his injuries have been wrongly diagnosed and treated.  He believes that the defendant’s refusal to pay for some of his rehabilitation was unreasonable. 
16 The weight of medical opinion is to the effect that these various stressors have all contributed to a condition of psychological stress which has served to amplify his experience of pain and other symptoms.  The condition has been variously described by specialists as adjustment disorder, chronic pain problem and, in the case of Ann Thornton, marked somatic over concern and major depression. 
17 Ann Thornton is a clinical psychologist, she was an impressive witness, and her views sit comfortably with the general thrust of the evidence as a whole.  She saw the plaintiff fortnightly between May 1997 and December 1997 and monthly until April 1998.  Initially in his presentations to her the plaintiff was "significantly angry" and "highly agitated".  She felt that his relationship with his partner and two children was at risk.  Eventually he was able to go through most sessions without constant rumination and anger.  He was unfit for work at least until November 1997, despite some improvement in his condition.  Very minor events would trigger high emotional distress, characterised by extreme anger.  He continued to improve after November 1997 to the point of being fit for a graduated return to work by the beginning of 1998.  Ms Thornton did not see the need for continued psychological assistance.  She was of the opinion that the accident was a major contributing factor.  
18 The weight of medical opinion is also to the effect that the plaintiff’s underlying physical condition, following non specific soft tissue injury to the right knee and spine, is relatively minor.  Dr Adrian Munyard suggested it would be reasonable to perform an arthroscopy on the knee to see if there is a problem, but the plaintiff did not undergo the procedure.  Xrays of the spine at various levels disclosed a minor degree of degenerative change. 
19 The major impact of the plaintiff’s physical and psychological injuries upon his earning capacity occurred, as I find, over a period of about five years from the date of the accident.  However, as his history shows, he did not always choose to work, and when he wanted to work he was not always able to do so.  On the other hand, he was hoping to obtain full time work with Ausco at the time of the accident, and was offered casual work by the company in September 1993.  Had he been able to accept the offer, he would have worked at least until December 1993.  Then, according to the correspondence in exhibit P18, he probably would have worked to the end of January 1994 and from April 1994 to March 1995.  The evidence of Ausco’s  then personnel officer was that the plaintiff was a very capable worker.  For the 8 month period that he worked for Ausco before the accident, he earned net wages of approximately $15,000.  Doing the best I can to weigh favourable and unfavourable contingencies, and given that a broad axe approach is called for, I consider that the sum of $70,000 should represent a fair assessment of the plaintiff’s loss of earning capacity to the time of trial.  I allow the nominal sum of $5,000 for the future.
20 I assess the plaintiff’s non-economic loss at $25,000.  I allow $750 for future medical expense.  Special damages have been agreed at $20,713.39. 
21 In summary, the plaintiff’s damages amount to $121,463.39 made up as follows:
loss of earning capacity
  past  $ 70,000.00
  future  $   5,000.00
future medical expense      $     750.00
non economic loss  $  25,000.00
special damages  $  20,713.39

22 There will be judgment for the plaintiff against the defendant for $121,463.39.  I will hear counsel concerning interest and costs.