Lane v Jennis - [2004] WADC 48

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: LANE -v- JENNIS [2004] WADC 48

CORAM: CRISFORD DCJ

HEARD: 16-20 FEBRUARY 2004

DELIVERED : 17 MARCH 2004

FILE NO/S: CIV 3450 of 2004

BETWEEN: MICHAEL PETER LANE
Plaintiff
AND
CHRISTOPHER EIAN JENNIS
Defendant

Catchwords:

Negligence - Motor vehicle accident - Driver going through red light - Contributory negligence - Quantum

Legislation:

Law Reform (Contributory Negligence and Tortfeasors Contribution) Act 1947

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Negligence and contributory negligence established

Damages assessed in the sum of $117,010.45 after reduction of 15 per cent for contributory negligence

Representation:

Counsel:

Plaintiff: Mr M E Herron
Defendant: Mr K N Allan

Solicitors:

Plaintiff: Dwyer Durack
Defendant: K N Allan

Case(s) referred to in judgment(s):

Hercules Textile Mills Pty Ltd v K & H Textile Engineers Pty Ltd [1995] VLR 310
Sibley v Kais (1967) 118 CLR 424
Southgate v Waterford (1990) 21 NSWLR 427
Wilde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997
Wynbergen v Hoyts Corporation Pty Limited (1997) 149 ALR 25

Case(s) also cited:

Andjelic v Marsland by his Tutor Protective Commissioner of New South Wales (1996) 70 ALJR 435
Joslyn v Berryman (2003) 198 ALR 137
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Mickelberg v The Director of the Perth Mint [1986] WAR 365
Motor Vehicle Insurance Trust v Wilson [1976] WAR 175
Pennington v Norris (1956) 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Ramsay v Watson (1961) 108 CLR 642
Redding v Lee (1983) 151 CLR 117
State Government Insurance Commission v Hitchcock, unreported FCt SCt of WA; Library No 970089; 11 March 1997
Villasevil v Pickering [2001] WASCA 143

CRISFORD DCJ: The plaintiff was born on 29 November 1982. He was involved in a motor vehicle accident on 4 November 2000 at which time he was just weeks short of his 18^th birthday. He was a student at Trinity College. He was due to sit his first Tertiary Entrance Examination on 6 November 2000.

The accident

The accident occurred at approximately 5.45 pm at the junction of Angove Street and Farmer Street, North Perth, in the State of Western Australia.
The plaintiff was the driver of a white Ford Laser wagon 8PR 690. He was driving in a south westerly direction along Farmer Street with the intention of turning right into Angove Street.
A blue Cortina station wagon 6LE 038 driven by the defendant had been travelling east along Scarborough Beach Road. It drove through traffic lights on Charles Street and continued into Angove Street. This motor vehicle collided with the righthand side of the plaintiff's vehicle as the plaintiff's vehicle moved from the stop sign on Farmer Street.
The plaintiff suffered extensive injuries. He was treated at Royal Perth Hospital for 10 days after being transferred from the accident scene by ambulance.
The plaintiff alleges in his statement of claim filed 12 December 2001, he suffered immediate and severe injuries of ruptured spleen, lacerated right kidney, right lacerated liver, bladder damage, internal bleeding, whiplash, multiple trauma and concussion. These injuries have now settled. He alleges he continues to suffer from residual disabilities of a right shoulder injury and also psychological injury and depression.
Liability is in issue.
The plaintiff says the defendant was negligent in that he:
(a)drove at an excessive speed in the circumstances;
(b)drove without taking due care and attention to the presence of the plaintiff's vehicle at the junction of Farmer Street and Angove Street;
(c)changed down gears and accelerated through red lights on Scarborough Beach Road;
(d)skidded through the intersection in a manner which indicated the defendant lost control of his vehicle.
The defendant denies negligence and says the accident was caused or contributed to by the negligence of the plaintiff in that he:
(i)moved from a stationary position on Farmer Street and into the path of the defendant's vehicle when he knew or ought to have known that the defendant's vehicle would not stop at an amber or red light against him at the intersection of Scarborough Beach Road and Charles Street as he was obliged to do.
(ii)prior to entering the intersection with Angove Street failed contrary to reg 402(8) and 601 of the Road Traffic Code 1975 as amended to stop at a stop sign erected against him and give way to the defendant's motor vehicle which was travelling along Scarborough Beach Road when he knew or ought to have known the defendant's vehicle would not stop at an amber or red light against him at the intersection of Scarborough Beach Road and Charles Street as he was obliged to do.
(iii)failed contrary to reg 602 of the Code to give way to the defendant's vehicle on his right when he knew or ought to have known that the defendant's vehicle would not stop at an amber or red light against him at the intersection of Scarborough Beach Road and Charles Street as he was obliged to do.
(iv)prior to entering the intersection with Angove Street failed to ensure that it was safe to do so.
(v)failed to keep any or any proper lookout for eastbound vehicles in Scarborough Beach Road and/or Angove Street.
(vi)failed to take any or any adequate care for his own safety.
(vii)failed to take any or any adequate action to avoid a collision with the defendant's vehicle.
The defendant, in the defence filed 7 February 2002, admits the blue Cortina station wagon driven by him was driven at high speed from Scarborough Beach Road into Angove Street.
A number of witnesses gave evidence as to the accident. The defendant did not.
The plaintiff was a probationary driver who had held a driver's licence for over 11 months. During that period of time he had driven his mother's automatic vehicle. He gave evidence that he had travelled the particular route previously, although the evidence is unclear as to whether it was as a passenger or as a driver of a motor vehicle. He indicated his sister's friend had taken him at least four or five times in exactly that same way.
The plaintiff's evidence is that he stopped at the junction of Farmer Street and Angove Street in response to a stop sign there. Traffic passed in both directions. He then checked to his right to ascertain the state of the traffic and saw that the lights at the intersection of Charles Street and Scarborough Beach Road/Angove Street were initially green, turned to amber and then to red.
He says he saw one vehicle, travelling east, stop at the intersection in response to the red light. He did not recall which lane it was in.
He then checked left, saw it was clear and started to pull out. He was concerned to ensure traffic was not flowing on his left as there was a brow of a hill in Angove Street. He was cautious and checked it quite regularly.
His evidence was he had a good, clear vision down his right along Scarborough Beach Road. He had a clear vision beyond the lights there for a considerable distance. There was nothing to prevent him seeing vehicles travelling east in Scarborough Beach Road. His evidence is supported by exhibit P2B which shows a clear view down Scarborough Beach Road.
He says having seen the lights progress to red and the vehicle stop at the light to his right he looked left, ascertained it was clear and moved out of the intersection. He did not again look right as he started to move out. At that time he heard a loud acceleration and immediate loud skidding.
I accept as is usually the case, when the lights were red for the traffic travelling east in Scarborough Beach Road and travelling west in Angove Street they were green for the north/south traffic in Charles Street. The vehicles travelling south in Charles Street were in a position to either turn left from Charles Street into Angove Street passing Farmer Street or to simply proceed along Charles Street.
Martyn Tristran Wild was travelling in an easterly direction in Scarborough Beach Road on the night and at the time of the accident. He was driving a Ford Festiva motor vehicle. He had turned into Scarborough Beach Road from Oxford Street and was travelling in the righthand lane of Scarborough Beach Road towards the junction of Charles Street. This is the lane closest to the centre of the road.
He became aware of a car following him which came into close proximity to the rear of his vehicle. As a result of this he moved into the lefthand lane to allow it to overtake. It was the defendant's vehicle.
This car which had been following him accelerated past him at a high speed. His evidence is he was then driving at 60 km/h and the defendant's vehicle at approximately 80 km/h.
He observed the car travel towards the intersection at Charles Street. He saw the lights turn red prior to the car arriving at the intersection. The car accelerated through the intersection and thereafter collided with the plaintiff's car. His estimation was the car was travelling in excess of 100 km/h. He heard screeching of tyres and brakes.
He pulled his car up in a sliproad on the left and called an ambulance. He recalls that the traffic in Charles Street travelling north/south had begun to move slightly across the intersection as the defendant went through it. He says there were no cars stopped at the lights facing him that he could recall. He had a clear vision of the junction. Any cars in front of him had turned left.
Tanya Farrell was stationary in a Lancer sedan situated behind the vehicle driven by the plaintiff at the stop sign on Farmer Street. Her intention was to also turn right into Angove Street.
She did not see the collision but simply heard it. However, when questioned she stated her estimation of the speed at the point of collision was approximately 80 km/h. She had moved up to the stop sign as the plaintiff's vehicle entered the junction ahead of her.
Senior Constable Andrew Roger Ward, attached to the metropolitan crash investigations, attended the scene shortly after the accident. Consistently with photographs taken at the time he was able to recall there were two black skid marks on the road surface – one from the left tyre and one from the right tyre of the defendant's vehicle.
The skid marks finished at the point of collision which was adjacent to the stop sign at the junction of Farmer Street and Angove Street. The lefthand tyre skid mark was between 11 to 14 metres and the righthand tyre skid mark was half that distance.
Martin Simms, a chartered consulting engineer, took a measurement of the distance between the lights at the Scarborough Beach Road/Charles Street intersection and to the point of impact near the junction of Farmer/Angove Streets.
His measurement was a combination of a physical measurement from the estimated point of impact to the corner of Charles/Angove Street/Scarborough Beach Road and an estimation, due to traffic flow, of the balance of the distance.
He then crossed referenced this method using a map of the area. His results were the measurements were 73.5 metres "plus or minus a half a metre or so, perhaps a metre at most."
The distance between the point of impact and the intersecting corner of Charles and Angove Streets that he could physically measure was 43.5 metres.
Craig Wilson, a manager of engineering design services for the town of Vincent used a plan of the intersection, to scale, to measure the same distance. He arrived at a measurement of approximately 72 metres for the total distance.

Findings

Neither of the two independent witnesses to the accident itself appeared to be anything but reliable. They both appeared to be of good character and to give their evidence as best they could recall it. In the main, their evidence was uncontentious.
It is well known that people personally involved in a crisis or who are in close proximity to a crisis often see the events completely differently. The rapid sequence of critical events and the sudden surprising nature of them makes what a person later recalls essentially a reconstruction of the event. This is exacerbated when a person is injured or suffers a physical reaction to the accident as happened to the plaintiff in this matter.
In my opinion, these matters have neither affected the reliability of the evidence of the witnesses to the accident nor to any great extent, the plaintiff himself.
I have tested the plaintiff's account against the evidence of the independent witnesses. I have also tested the plaintiff's account against my commonsense and experience as a road user.
The onus of establishing contributory negligence rests on the defendant (Hercules Textile Mills Pty Ltd v K & H Textile Engineers Pty Ltd [1995] VLR 310).
As was said in Sibley v Kais (1967) 118 CLR 424 at 427:
"The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to 'reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected."
Drivers at intersections and junctions cannot rely upon others performing their duties as drivers in accordance with traffic rules and regulations.
I find that the plaintiff stopped at the stop sign at the junction of Farmer Street and Angove Street as he was required to do. He waited for traffic to pass. He then looked to his right to ensure that way was clear.
In doing so I find his attention was primarily focused on the lights facing him looking east into Angove Street rather than on the actual traffic in the road. He saw the lights turn green, amber and finally red. He recalled a stationary vehicle at the lights.
The independent witness, Martyn Wilde, had no recollection of a stationary vehicle. His evidence was that he had clear vision of the intersection in front of him and his memory was of any vehicles in front of him turning left into a petrol station or into Charles Street. His full attention was on what was straight ahead of him and he had an unimpeded view. I accept his recollection.
The plaintiff ensured traffic was clear to his left. He was particularly cautious about traffic on his left as it came over a brow of a hill and he was thus checking that way regularly. This may well have been at the expense of carefully checking possible traffic on the right. Without rechecking to the right he pulled into the intersection and the crash occurred.
The plaintiff was aware not only of traffic being able to enter Angove Street from Scarborough Beach Road but also, once the lights north/south in Charles Street turned green, there was the possibility of traffic entering Angove Street from that flow as well.
Even without the secondary source of traffic coming towards him on the right I find a cautious and prudent driver would have again in the circumstances viewed any possible source of vehicles coming down Scarborough Beach Road prior to pulling into the intersection. Given the configuration of the intersection additional care was needed to ensure that other vehicles were not approaching.
Traffic flow on the plaintiff's right was far more immediate than any flow on his left.
There can be no doubt the defendant drove at a speed well in excess of the speed limit and in doing so he went through a red light. His attempt at evasive action in braking was rendered completely ineffective due to his speed.
The plaintiff on the other hand failed to take all reasonable steps to ensure it was safe to enter the intersection when he did.
There was a need for him to carefully check for oncoming traffic, predominantly by physically looking down the roadway rather than viewing and primarily relying on the state of the traffic lights.
It would have also been reasonable for him to recheck to his right given that any vehicles coming in that direction would be in much closer proximity than vehicles a lane away to his left.
Given the speed of the defendant's vehicle and the position of the skid marks, I find the defendant's vehicle was well into the intersection if not through it when the plaintiff pulled away from the stop sign.
Apportioning liability between the parties involves the comparison of the culpability of the parties. In Wynbergen v Hoyts Corporation Pty Limited (1997) 149 ALR 25‑29 Hayne J said that apportionment legislation such as the Law Reform (Contributory Negligence & Tortfeasors Contribution) Act 1947:
"Is predicated upon the findings that a person suffers damage as a result partly of the person's own fault and partly of the fault of any other person or persons. No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, ie, the degree to which each has departed upon the standard of what is reasonable, but that is not the only element to be considered. Regard must be had to the relative importance of the acts of the parties in causing the damage and it is the whole conduct of each negligent party in relation to the circumstance of the accident which must be subjective to comparative examination."
I have reached the starting point that each party is liable in some way for any damage incurred as a result of the accident.
As to a comparison of the culpabilities of the parties, having regard to the relative importance of the acts of the parties in causing any damage, in my opinion, for the reasons given earlier, the defendant is primarily culpable. However, the plaintiff's negligence also played a part in the accident.
Pursuant to s 4 of the Law Reform (Contributory Negligence & Tortfeasors Contribution) Act 1947 it is necessary to reduce the plaintiff's claim "to such an extent as the Court thinks just in accordance with the degree of negligence attributable to the plaintiff". In my view the appropriate reduction is 15 per cent.
Prior position of plaintiff
Prior to the accident the plaintiff had been actively involved in playing cricket. He had played that game since he was 7 years of age and his whole life had revolved around it. He had played first grade and A grade on a couple of occasions. The evidence of Wayne Andrews, a cricket coach and former Sheffield Shield cricketer, was that the plaintiff was a very promising cricketer. He expected the plaintiff would probably play in representative teams.
As a result of the accident happening two days prior to the commencement of his sitting his Tertiary Entrance Examinations the plaintiff was unable to sit any of these exams. His evidence was he had studied extremely hard for them.
The plaintiff thereafter sat a university access course at Murdoch University. This entailed four weeks full‑time attendance over what would otherwise have been a holiday period. He successfully completed the course and is presently studying primary school teaching at Murdoch University.
Prior to the motor vehicle accident he had been offered a place to study at Edith Cowan University doing an associate degree of Social Science (Police Studies). This was to enable him to attempt to enter the police force via the Police Academy. This course was deferred and the plaintiff is of the view that he could not now enter the course given both physical and psychological difficulties he experiences.
As a result of the accident and the need to do the bridging course at Murdoch, the plaintiff was unable to take up employment with the Ministry of Justice detailing cars over the holiday period.

Evidence as to accident caused injuries and disabilities

The plaintiff was admitted to Royal Perth Hospital immediately after the accident and was discharged on 14 November 2000. He suffered abdominal injuries which included a small liver laceration, a mid‑pole kidney laceration and spleen haematomas.
He was managed conservatively with intravenous fluids. He had a transfusion of two units of blood. He was prescribed analgesia, Maxolon and thromboprophylaxis of Heparin. He had compression stockings. He also suffered complications of a false urethral passage following catheterisation.
His evidence was that he thought he was going to die both at the time of the accident and when in hospital.
The medical notes indicate his recovery was uncomplicated and he was followed up in the outpatient clinic on 14 December 2000. He then complained of pain in his right shoulder, knee and wrist. His knee and wrist pain settled after he undertook some swimming. His shoulder pain did not. The defendant denies the alleged shoulder injury arises as a result of the accident.
At the time of his outpatient review he reported having great fear of driving and being in a motor vehicle. He was suffering from flashbacks which were frequent and intrusive. He was given a referral to a trauma psychologist, Trent Falkner.
He was treated by this psychologist between 7 February 2001 and February 2003. Whilst he had no psychological problems prior to the accident thereafter he suffered from depression and severe post‑traumatic stress disorder.
A report of Trent Falkner of 6 February 2003 indicated he was responding well to his anti‑depressants and to psychological treatment and "continues to improve". He was found to be well motivated to improve his situation. After a further review some 10 months later and in a letter to his lawyers a month or so prior to trial he was found to be more symptomatic by Mr Falkner.
The plaintiff was not totally happy with his assistance from Mr Falkner. He did get some help with a technique known as desensitisation and this helped him face his fear of driving. However, he was of the view that the procedures used by Mr Falkner stimulated a lot of anger in him. It is not planned that Mr Falkner will continue treating the plaintiff.
Mr Falkner was simply qualified as a "clinical psychologist". At trial he conceded his opinion was a bit of a guess when he was asked when any further improvement of the plaintiff could be expected:
"Look, I'd only be guessing since I haven't really seen him for a year, and it was only a review when I saw him in January and December, I don't know him – I don't know his present functioning well enough to make an educated guess."
Overall, I found Mr Falkner of little assistance in terms of the plaintiff's present functioning and the likely prognosis.
He was referred to a psychiatrist, Dr Morkell, and first seen on 14 January 2003. A report of 21 March 2003 diagnosed a major depressive disorder with prominent anxiety symptoms and some residual post‑traumatic stress symptoms. He attended an eight week cognitive behavioural therapy course at Perth Clinic.
His evidence was that premorbidly the plaintiff did not have psychiatric illness, there was no underlying personality psychopathology or history of illness behaviour which all boded well for the future. However, there would be some residual impairment and impact for an extended period such that psychiatric intervention would be required for two to three years, along with psychological input and medication.
Mandy Vidovich, neuro psychologist, assessed his functioning on 6 May 2002. She concluded he was unlikely to have sustained brain damage at the time of his accident.
Dr Chappell, general practitioner, first saw the plaintiff on 24 January 2002 and has effectively managed and coordinated his treatment since that time.
He complained of right shoulder pain to Dr Chappell and was referred to an orthopaedic surgeon, David Colvin for review. In a report dated 29 December 2003 Dr Chappell noted significant improvement with his shoulder. He had a full range of movements and full power below the abduction of 90 per cent.
His summary was that there had been some definite improvement with his shoulder but a slight deterioration in his major depression.
On 4 February 2004 he complained of a new pain in his shoulder. In the medical notes of 13 February Dr Chappell states the pain is much improved and was a mild set back.
Dr Colvin initially saw the plaintiff on 11 February 2002 some 14 months after the accident. After an MRI scan he confirmed on 18 March 2002 an impingement syndrome and low grade rotator cuff tendonitis. The MRI at that time demonstrated low grade fraying of the tendon of the infra‑spinatus muscles of the rotator cuff. It did not demonstrate permanent injury.
He recommended a series of three subacromial cortisone injections and on 27 June 2002 he undertook right shoulder arthroscopic acromioplasty on the plaintiff.
He was last seen by Dr Colvin on 17 March 2003 where his records showed that the plaintiff had improved considerably. He was still having moderate restriction in his range of motion in the right shoulder and his disability was rated as 10 per cent of the right arm at or above the elbow.
A further MRI study was conducted on 11 February 2004. This revealed a partial‑thickness rotator cuff tear. The tear to the tendon had increased since the previous MRI taken on 19 November 2002. Dr Colvin was of the view that whilst it continued to be a small tear it was becoming of some clinical significance.
When asked what problems the plaintiff could expect Dr Colvin indicated that they could vary greatly from being asymptomatic or to that of experiencing quite moderate pain levels of impingement type symptoms.
The overall tenor of his evidence and reports was optimistic.
Janet Caroe and Peter Fazey, physiotherapists, had been involved with the plaintiff in respect of his shoulder injury primarily to stretch and strengthen the rotator cuff muscles.
Dr Patrick Hanrahan, rheumatologist, saw the plaintiff on one occasion on 20 May 2002 at which time it was considered premature to finalise the claim.
Dr Vinar was the plaintiff's initial treating practitioner after the accident in November 2000. He was called as a witness at trial by the defendant. The defendant alleges there is a lack of causal connection between the motor vehicle accident and the injury sustained by the plaintiff to his right shoulder.
One of the reasons for the defendant's contention is that there was no complaint by the plaintiff about his right shoulder injury for almost a year following the accident. It was during this period of time that Dr Vinar was the treating general medical practitioner of the plaintiff.

Findings as to the accident caused injuries and disabilities

It is not seriously disputed that the plaintiff sustained immediate severe injuries as a result of the motor vehicle accident which required hospitalisation at Royal Perth Hospital for a 10 day period. There was a need for the plaintiff to be confined to bed after his release from hospital.
Most of the injuries settled with conservative management within a month. It is not disputed that there are ongoing psychological difficulties for the plaintiff as a result of the accident.
What does remain in dispute is whether there is a link between the ongoing shoulder difficulties experienced by the plaintiff and the motor vehicle accident.
The Royal Perth Hospital outpatient case notes of 14 December 2000 indicate the plaintiff did complain at that time of pain in his right shoulder, knee and wrist. The plaintiff's motor vehicle was struck on the right side. His evidence was that the whole right side of his body was extremely painful and there was severe bruising which lasted some time.
The outpatient clinic recommended that he do some exercise such as swimming. This was helpful for his right wrist and right knee pain. The shoulder did not respond in the same way.
His evidence was that he reported the right shoulder pain to his then general practitioner, Dr Vinar. Dr Vinar's view according to the plaintiff was that it was simply a case of frozen shoulder syndrome. He was given anti‑inflammatories and pain killers.
The first written record of a shoulder complaint to Dr Vinar was on 12 September 2001 over 10 months after the accident. The record was "complaining of pain in his right shoulder after swimming; noted the pain resolved after a few hours."
What is unclear from the evidence is when he started swimming and when he first reported the shoulder problem to Dr Vinar.
In cross‑examination the plaintiff was sure that 12 September 2001 may have been the first time the doctor recorded it but he did not think it was the first time he had complained of it. He indicated that he did make complaint but the issue was whether the doctor had recorded it or not.
Whilst Dr Vinar had not given him a prescription for pain killers and anti‑inflammatories the plaintiff's evidence was that he had given him some sample packs of pain killers and anti‑inflammatories.
The plaintiff says he was inactive for a period whilst the major injuries settled. The right shoulder only became really problematic once he started to swim.
Dr Vinar gave evidence. His memory of this particular patient was incomplete, as one would expect given the effluxion of time. There was also evidence of Dr Vinar having at some stage experienced work related problems and his own health difficulties.
His evidence was that he did not have any memory of the consultations other than by looking at his notes. He had a general memory of Mr Lane but no specific details of the problems, the causes or the treatment.
Dr Vinar's approach to note taking can only be described as minimalist. There was an occasion prior to the accident where a letter of referral was written but no actual notes taken of the consultation. Again, on 21 December 2001, despite a consultation there were no notes made.
He conceded that there may have been times the plaintiff attended him but it was always possible he did not make a note of his attendance.
Dr Colvin gave evidence that, in general, symptoms from an injury have a temporal association with the injury. Symptoms come on shortly after an injury. He gave evidence that because the plaintiff had multiple other injuries any minor injuries may have been masked by pain and missed. He stated he would expect symptoms to appear within a matter of months.
The first notation of a shoulder injury is in the outpatients' clinic a month after the injury and the plaintiff's evidence is that he made complaint thereafter to Dr Vinar. The plaintiff's mother, Mary Lane, gave evidence of shoulder complaints after the accident. I accept this evidence.
The plaintiff's evidence was that he did not want to have any injuries and was content to accept the diagnosis of frozen shoulder from Dr Vinar. He wanted it to get better. It was only when it became apparent the shoulder was not settling that he attended another general practitioner, Dr Chappell. Dr Vinar had referred the plaintiff to a physiotherapist, Peter Fazey. The report of the physiotherapist of 16 February 2004 states:
"Mr Lane was initially seen at this clinic on 17 September 2001 on referral from Dr M Vinar for physiotherapy treatment of injuries sustained to his right shoulder in a motor vehicle accident on 4 November 2000.
…He had been relatively inactive for a period of time following the injury but on resumption of exercise over the preceding month had developed increasing shoulder pain with activity."
Whilst Dr Colvin was unable to say conclusively that the shoulder problem was caused in the accident it was his personal opinion, given the history provided to him, that the accident has contributed to the plaintiff's shoulder problems. It was only as the plaintiff became more active that the shoulder injury became an issue.
Despite what I consider to be a small possibility the shoulder was caused by other factors such as the swimming or wear and tear I am persuaded on the balance of probabilities that the origin of or catalyst for the shoulder problems experienced by the plaintiff arose as a result of the impact to the right hand side of his vehicle and his body on 4 November 2000 in the accident.

The award for pain and suffering and loss of amenities

The plaintiff's injuries arose from a motor vehicle accident after 1 July 1993. The provisions of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 cover the amount of damages to be awarded to the plaintiff for non‑pecuniary loss.
Non‑pecuniary loss is defined in the Act to include pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm. Subsection (2) of s 3C of the Act provides that:
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, with the maximum amount that might be awarded."
The maximum amount of damages that may be awarded under the Act for non‑pecuniary loss is currently set at a figure of $249,000 ("Amount A").
Subsection (3) of s 3C provides as follows:
"(3)The maximum amount of damages that may be awarded for non‑pecuniary loss is Amount A, but the maximum amount may be awarded only in a most extreme case."
A useful guide to the interpretation of these provisions is to be found in Southgate v Waterford (1990) 21 NSWLR 427. The New South Wales legislation under consideration in that case was set in somewhat different terms to s 3C of the Act but, as it stood at the time, provided that damages for non‑economic loss were only to be awarded in cases where there had been significant impairment of an injured person's quality of life and required the Court to assess the amount of damages to be awarded for non‑economic loss as a proportion, determined according to the severity of the non‑economic loss, of the maximum amount which the legislation permitted to be awarded.
In the joint judgment Gleeson CJ, Kirby P and Meagher JA said at 440:
"There are a number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3). It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2). But, clearly the task in hand is that of awarding damages for 'non‑economic loss', it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss. This will require the judge to consider and make findings on the evidence relevant to those heads of damages formally considered in the award of general damages. Then it is necessary for the judge to conceive 'a most extreme case'. Only for such a case may the maximum amount provided by s 79(3) be awarded. The use of the indefinite article in 'A' has already been noted. Opinions of what constitute 'a most extreme case' would doubtless vary. But clearly quadriplegia would fall within that class. The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for 'a most extreme case'."
See also Wilde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997.
The accident was undoubtedly a traumatic experience for the plaintiff. He felt he was going to die. He had conservative treatment for the immediate severe injuries and these settled. He underwent a range of treatments including a series of three subacromial cortisone injections into his shoulder and thereafter surgical intervention for his shoulder in June 2002.
The overall medical position is that his shoulder and post‑traumatic stress disorder have improved since the accident. However, the most up to date evidence suggests there has been a slight turn for the worse in recent times.
I accept, with some reservation, the position put by the defendant's counsel that the stress of the present proceedings and the need to go over the traumatic events associated with the accident may well have contributed to some of the plaintiff's present despair. Hopefully, this will settle in time.
The plaintiff appeared to be a very genuine but sensitive person and it was clear from the way he presented that it was difficult for him to again deal with the events of 4 November 2000 and to have his version questioned. Those events and the sequelae caused him stress. This was confirmed by his mother's evidence.
The plaintiff has experienced ongoing pain in his right shoulder. This has required him to take analgesics for the relief of that pain. He continues to be restricted in his engagement in sporting activities. This has especially impacted on his ability to participate in cricket. He was heavily involved in cricket prior to the accident and the loss of an active cricketing career causes him distress.
He played cricket for Trinity College and since Year 8 he had been in the first 11 squad for training. He played for the first 11 side in Year 10. He had also played for the Midland‑Guildford District Club. He had played for first grade and A grades in that Club on a couple of occasions. He has not been able to participate in his cricketing activities to any great extent since the accident. He has lost his circle of friends who continue to be involved in cricket and his social life has diminished considerably.
There has however been vast improvement in his shoulder and in late 2003 he was actually participating in some form of cricket activity.
He has experienced anxiety, frustration, anger and post‑trauma symptoms of emotional distress and unwanted memories of the accident which has caused stress and disruption of activities.
The evidence is that this young man is a positive young man. To his credit he immediately undertook a university bridging course and is now progressing, albeit with some difficulty, towards a primary teaching degree.
By and large the prognosis for continuing improvement in all areas is favourable. Dr Colvin expressed the view that the plaintiff has a 10 per cent disability of his arm at or above the elbow. The evidence of Dr Morkell is that there may be some residual impairment on a psychiatric level.
Having identified the evidence relevant to those heads of damages that customarily fall within an award of general damages, the next step I am required to take is to postulate what might be a most extreme case in which the maximum amount of damages, currently standing at $249,000 may be awarded for non‑pecuniary loss, and then apportion damages by comparing the severity of the plaintiff's non‑pecuniary loss with that likely to be suffered in a most extreme case.
When the plaintiff's injuries and associated symptoms are compared with what may be regarded as a most extreme case, for example, quadriplegia, it seems clear that the plaintiff's initial injuries and symptoms, their progression and treatment, the prognosis for their improvement and the affect they have had on his enjoyment of life place his case at no more than 20 per cent of a most extreme case. This 20 per cent of $249,000 is $49,800.
Section 3C(6) provides that:
"If the amount of non‑pecuniary loss is assessed to be more than Amount C but less than the sum of Amounts B and C, the amount of damages to be awarded for non‑pecuniary loss is the excess of the amount so assessed over – Amount B – [amount so assessed – C]."
Amount C is $38,000. Amount B $12,500. The non‑pecuniary loss of $49,800 is more than Amount C but less than the sum of Amount B and C. This means the plaintiff is entitled to $49,100 for non‑pecuniary loss.

Special damages

It has been agreed between the parties that, in the event of liability on the part of the defendant being established and also the causal link between the injury to the plaintiff's shoulder and the accident being made out the plaintiff will be entitled to the amount of $20,069.55. This is a total amount and includes an allowance for travelling.

Past economic loss

The plaintiff was unable to take up holiday employment with the Ministry of Justice during the 2000/2001 holiday break. His inability to work was due to the injuries sustained in the accident generally. There was no great challenge to the amount sought by the plaintiff and I am prepared to allow that amount which is $2,660.04.
As a result of the surgery the plaintiff underwent on 27 June 2002 in relation to his right shoulder he was unable to work in part‑time employment for a period of eight weeks. He was doing data entry for a real estate firm Home Open Pty Ltd. The claim for earnings during that period of time is allowed in the sum of $1,084.40.
When he did return to work thereafter and for a period of six weeks he was unable to work the same number of hours as he had before the surgery. I am prepared to allow the claim for damages for the difference between his actual earnings and his average earnings prior to the operation in the sum of $131.28.
Thereafter the plaintiff's evidence is somewhat vague about his inability to continue working at all. He ceased his part‑time employment for over a year but has now recommenced that work again. He is now in a position to work the equivalent of his pre‑surgery hours.
Whilst I accept the plaintiff has had ups and downs in relation to both his shoulder injury and to his post‑traumatic stress disorder and depression, the evidence in regard to this part‑time work was scant. I will allow damages for loss of income for a period of nine months (19.5 pay periods at $271.10 each pay period) an amount of $5,286.45.
The claim for interest at 3 per cent for one year on the total past economic loss is allowed. (3 per cent of $9,162.17 = $274.87).
The total past economic loss is $9,437.04.

Future medical expenses

At the conclusion of the trial a schedule of future medical expenses was handed to the Court by the plaintiff's counsel. An appropriate allowance for future medical expenses in accordance with the evidence given is as follows:
IVisits to general practitioner (evidence of Dr Chappell)
(i)once every three months for six months ie two visits at $40 per visit.
(ii)once every three months for 21 months ie seven visits at $40 per visit.
(iii)once every six months for one year ie two visits at $40 per visit.
Total: 11 visits over 3 years at $40 per visit
$2.82 per week x 143.6 = $405.00.
II        Psychological Review (evidence of Dr Morkell)
(i)one hour every month for two years (24 hours).
(ii)one hour every six months for one year (2 hours)
Total: 26 hours over three years at $140 per visit.
$23.33 per week x 143.6 = $3,350.67.
III       Psychiatric Review (evidence of Dr Morkell)
(i)one hour every fortnight for one year (26 hours).
(ii)one hour every month for two years (24 hours).
Total: 50 hours over three years at $150 per hour
$48.07 per week x 143.6 = $6,903.85.
IV       Physiotherapy (evidence of Janet Caroe)
(i)one session every fortnight for two years (52 sessions).
Total: 52 sessions at $41 per session
$2,132 = $20 per week x 98.5 = $2,019.25.
There was no evidence led to suggest a need for ongoing specialist orthopaedic review. However, it is my view that this would be necessary for a period of time. Likewise there was no evidence presented in relation to any claim for a three year gym membership. I do not accept this is necessary. The evidence in relation to a claim for medication was, in the main, unsatisfactory.
However, I accept there is a need for continuing medication of some sort. I will allow a global amount of $1,374 to cover these two items over a three year period.

Future economic loss

The plaintiff puts forward two arguments for a global award in relation to future economic loss. Both parties have used the term future economic loss to describe the difference between what the plaintiff would have earned if he had been able to enter the Police Academy and what he is likely to earn as a primary school teacher. Some of the loss, however, relates to a time passed – the time in the Police Academy and some part of a probation period.
As a global amount is sought I have not split the amounts and have treated it all as future economic loss. Essentially, I have taken a broad approach.
The first argument is that the plaintiff had accepted a place in the associate degree of Social Science (Police Studies) at Edith Cowan University due to commence in February 2001. After studying and a time at the Police Academy the plaintiff had hoped to become a police officer. This course of studies was deferred by the plaintiff on 22 February 2001.
As it transpired even if he had successfully completed his studies there was no guarantee he would be accepted into the Police Academy. The parties agreed that during the period 1 January 2002 and 31 December 2002 there had been 944 applications by persons wishing to join the police force and thus attend the Police Academy. Of those applications only 184 persons were selected. Without more, each applicant had less than a 20 per cent chance of acceptance.
There was no real evidence of the plaintiff's present inability to commence the associate degree of Social Science (Police Studies) at Edith Cowan University. He believed he was not physically or mentally able to enter the police force.
In any event, the plaintiff almost immediately enrolled as a student at Murdoch University to complete a four year full‑time course to become a primary school teacher. He will commence his teaching in 2005. To date he has successfully completed three years and is in his final year. He continues to work part‑time doing data entry with the firm Home Open Pty Ltd.
In a relatively short time, approximately 2009, the plaintiff's earnings as a teacher will achieve parity with any earnings he may have been entitled to as a police officer had he been accepted into the police force.
The second matter the plaintiff wishes the Court to take into account is that as a result of his shoulder injury he will be unable to return to attempt to gain selection in the State squad cricket team and will forfeit any financial advantages that may have resulted from his cricketing potential.
Wayne Andrews gave evidence that a professional cricket player in the West Australian State Squad could expect, if on contract, to earn between $27,500 and $80,000 per annum.
Wayne Andrews also gave evidence that if a person is a permanent member of the State team it is a full‑time occupation. Even if a cricketer is on the lowest paid contract there is a 100 per cent time commitment. Very few players on contract also hold down employment.
On the balance of probabilities I find that the plaintiff had a greater than 20 per cent chance, given his good academic record, his acceptance into the University study course, his physical fitness and his general demeanour of getting into the police force. He presented as a personable young man who had high motivation and strong family support.
It was, however, by no means guaranteed and how high his chances were over and above the 20 per cent mark is difficult to say. I find it more likely he would have been able to pursue a career in the police force than as a professional cricketer. It is unlikely he would have been in a position to hold down both a contract for cricket even had he been offered one and also pursue a full‑time career with the police force.
Due to the accident the plaintiff was able to quickly reassess his career options and in 2002 commenced alternative tertiary study. He is currently enrolled as a student at Murdoch University having completed three years of a four year full‑time course to become a primary teacher. It was not his first choice.
If he had been able to continue his plans to become a police officer, and if he had been successful in this regard he would have been in a position to commence employment several years earlier. A schedule supported by evidence setting out a net loss prior to the reaching of some form of parity with his present career path is in an amount of $73,164. According to exhibit P16 he may have received further allowances as a teacher.
The parity in income will be achieved in about 8 years. The defendant's position appeared to be that this may be a guide, a general guide, in the formulation of a global figure if I was of the view it was appropriate.
I take into account the plaintiff would already have had the benefit of most of the income, the receipt of which is now delayed. On the other hand, he will benefit from a lump sum of some of the amount. I am also aware that the plaintiff will receive some money as past economic loss for a nine month period when he was unable to work at Home Open Pty Ltd, employment he may not have undertaken in 2003 if he had been otherwise employed.
The evidence makes it difficult to come to any firm conclusions in relation to future economic loss. However, it is my view that the plaintiff had a good chance of becoming a police officer at that time and exercising his chosen career path. It was, however, by no means a certainty as the agreed figures show. He lost a chance to try to do that work at that time. Taking all this into account it is my view a figure of $45,000 is appropriate.

Summary of award

Non‑pecuniary loss  $ 49,100.00
Special damages  $ 20,069.55
Past loss of earning capacity                $    9,437.04
Future loss of earning capacity            $ 45,000.00
Future medical expenses  $ 14,052.77
Total                   $137,659.36

In view of my findings on the issue of contributory negligence the plaintiff is entitled to 85 per cent of the aggregate award reflected in the above summary which amounts to $117,010.45.