Lawson v Ogierman No. DCCIV-00-277

LAWSON v OGIERMAN
[2002] SADC 172
Judge Lowrie
Civil

The plaintiff, aged 43, claims damages for the injuries, which he suffered on 4 January 1998 when riding his motorcycle down the Gorge Road at Athelstone and came into collision with a vehicle driven by the defendant.
The defendant had driven his car from a lookout position on the southern side of Gorge Road, in effect, across the path of the oncoming motorcyclist.
The plaintiff suffered serious injuries including knee damage and a fracture of his left hip. He was hospitalised for almost three weeks and underwent orthopaedic surgery to repair the hip damage. The plaintiff had a substantial period of convalescence following that surgery.
The plaintiff has suffered ongoing problems namely related to his hip and claims consequential monetary loss.
The defendant denied that his course of driving was negligent.
EVIDENCE
The plaintiff gave evidence as well as his former defacto spouse, Ms Sangster, Mr Scott who was employed in a managerial position at the Australian Taxation Office where the plaintiff worked at the date of the accident, the psychiatrist, Dr Davis, and surgeons, Mr Pohl and Mr Eriksen.
The defendant gave evidence and called Mr Doyle, the ambulance driver who attended the scene of the accident.
A number of medical reports were tendered by the consent of both parties including the notes of the plaintiff’s general practitioner, Dr Tolis, and the reports of Dr Angel and Dr Graham.
Plaintiff
The plaintiff completed year 12 at Seacombe High School. He left school in 1976. He undertook an apprenticeship with Telecom, but said his school studies had been deficient in both maths and physics and consequently he had study difficulties during his apprenticeship. He said when he was 18 he did “a little bit of travelling and surfing”. He outlined the many jobs undertaken including work at Tennant Creek. Having observed the plaintiff giving his evidence and being cross-examined over a long period, I regard him as an exceptional witness and found his presentation refreshingly honest. He gave his evidence in a straightforward manner and, if anything, tended to understate the effect of his injuries. The plaintiff, in his early years, was not afraid to undertake hard labouring work in remote places.
The plaintiff is not without intellectual abilities. He said that in 1983 he enrolled for a Bachelor of Arts Degree at Flinders University. He said he had reached a stage in his life where he felt he could improve on the menial type labouring work that he had undertaken in the past and considered that he needed “more schooling”. He said by about the third year of that course he became concerned in two areas. Firstly, as to what employment he could gain from those studies and, secondly, he started to “miss the money”. He then returned to the workforce with Skilled Engineering. He believes his study option is still open for him to return.
His employment with Skilled Engineering was assisting all types of trades with generally short-term contracts. He said in this time he had undertaken an examination to enter the Commonwealth Public Service and subsequently, in 1987, received an offer of employment in the Australian Taxation Office in Perth. He immediately accepted such offer. He said he was pleased to have obtained this type of employment. He said he commenced his employment in what he called a “bottom ranking type position” and worked his way through the employment process until he reached the stage where he was representing the Commissioner at bankruptcy meetings and insolvency administration. He remained in Perth with the tax office until March 1992 when he was transferred back to Adelaide. He had reached a fairly substantive salary range whilst in Perth which he described was like an AS02 level.
When he returned to Adelaide he eventually led a prosecution team which, in effect, handled investigation enquiries of taxpayers. He remained in that position until 1997 when he was promoted to an acting supervisory type role in a clerical support unit.
He said that in 1996 he met Ms Sangster and in late 1997 commenced living in a defacto relationship with her. At the time she had children from a prior relationship. He said her daughter, Lindsey, was then a small infant. The plaintiff, and confirmed by Ms Sangster, said he has always had a good relationship with Lindsey. He said Ms Sangster had a 14-year-old son and, again, although he did not see himself as a father figure, their relationship was more brotherly. Ms Sangster was a conveyancer/ land broker. In 1997 they bought a property jointly at Seaview Downs. Settlement occurred in early 1998.
The plaintiff said that prior to the accident his social activities included surfing and riding his motorcycle. These activities formed a large part of his relaxation and social life.
He described how on the day of the accident he rode his motorcycle, saw friends and was returning home down Gorge Road when the accident occurred.
Accident
The plaintiff said that he was very aware of the nature of Gorge Road and its speed limit. He said at that stage the speed limit had been reduced from 100 to 80 kph and thought the area was likely to have a police presence. He was conscious of these matters when returning home this day. The plaintiff is an experienced motorcyclist. He confirmed he was aware when approaching the area of the accident of the slight right hand bend and adjacent car park. That park has a view over the Kangaroo Creek Dam reservoir. He said as he was riding he was conscious of staying within the 80kph speed limit.
He said he became aware of a vehicle at the entrance to the car park. He said initially he assumed the vehicle was going to stop at the entry point of the car park, so he continued his downward course. He then, in that brief moment of time, had a realisation that the vehicle was continuing its course into his carriageway. He described the momentary thoughts and what avoiding action he could undertake. All veering manoeuvres were fraught with danger so he braked as hard as he could. He said in his secondary responsive phase, he felt it was impossible to veer around the vehicle. His motorcycle came into collision with the front wheel area of the defendant’s four-wheel drive vehicle.
The plaintiff was riding a Honda 750 VFR motorcycle. He explained that with that type of motorcycle whilst travelling the headlight remained on at all times. He said when he first saw the vehicle he thought it would simply “creep up to the edge of the road and stop”. He said he believed he first saw the vehicle about 100 metres from the point of impact. The road curves at that point and from the photographs there are a number of trees, which prior to the 100 metres would restrict visibility.
The plaintiff said he first realised that there was potential for a collision “a second or so after I first registered that he was there”, and, it was only in the last few seconds of his vision that he observed the course of the vehicle into his path. The plaintiff, as I said, is an experienced motorcyclist. He outlined his options and the effect hard braking or swerving would have on the course of his motorcycle. He mentioned that hard braking meant that it precludes the motorcycle from following a swerving or curving course. He said he did not consider a momentary release of the brakes in order to try to corner around the front of the vehicle as at that stage he felt the vehicle was still moving into the roadway, and, there was then his realisation that the collision was unavoidable.
The plaintiff said he had no recollection immediately following the impact and had some “flashes” while lying on the road. He had a memory of a person holding a towel, and another flash of an ambulance officer and then occasional flashes of the ride to the Royal Adelaide Hospital, but his first lucid memory was of waking up later that night in hospital.
The plaintiff underwent his hip operation on 7 January 1998 and although he had injured his knee this did not require surgery. He remained in the Royal Adelaide Hospital until he was discharged on 23 January 1998.
The plaintiff said initially he had much pain in his hip and received morphine dosages; could not sleep and consequently spent some three weeks lying on his back with his legs strapped together, which did give him “a bit of strife”. On his discharge from hospital, he returned to live with Ms Sangster and explained his use of crutches and the limited nature of his movements. He was significantly assisted by Ms Sangster’s administrations in these many weeks.
The plaintiff outlined how they moved into their new house on 28 February 1998 with little assistance on his part and he was able to return to work in April 1998. He said on his return to work he was in the process of transferring to a different area of work, with different employees, and although there were times when slightly heavier work was involved, he took care with his movements and undertook those duties. He said he coped with his work “not too badly”.
He was very candid about how the relationship with Sonya started to deteriorate after returning home from hospital. He said he was aware of becoming “moody” and “snappish” and frustrated with his inability to resume his normal life. He said he was a social drinker but found himself drinking up to half a dozen beers in the middle of the day. He felt that his frustrations with his life were significant. Eventually he felt it was easier if he moved into a separate room in the house and he became “like a boarder”. He said he began to appreciate that he was taking his problems to work and indeed he got some advice from an occupational counselling group referred to as OCAR. His personal issues were both he felt mental and physical. He said he was looking for some “magic button” that would enable him to function properly and get back to his normal life.
He said he had been to see his general practitioner, Dr Tolis, and was prescribed antidepressant medication, which helped, as well as medication for his pain management. He suffered some fairly severe nightmares and was also assisted by medication for this problem.
He explained changes, which occurred in the nature of his employment in the tax office in 1999 and the active type investigative role that he was then undertaking. He said when he had to visit sites and obtain large boxes of documents, when he carried them this would cause him some difficulty. Then he said when he would get into personal situations with taxpayers he found difficulty in coping and said he was aware he seemed often to take the easy course by not attending work and focussing on his problems.
He said eventually he felt obliged to move out of the house he had bought with Sonya and he stayed with a friend at Christies Beach. He felt at that time that realistically his relationship with Sonya was over and he simply “dropped” everything and resigned his employment. In March 2000 the house at Seaview Gardens was sold and all ties with Sonya were severed. His resignation from the tax office was effective from 17 March 2000.
Pre-accident he believed he had a long-term relationship with Sonya and considered his employment with the tax office was permanent.
He said he had difficulty in explaining or rationalising his life and decisions and behaviour following the accident, which certainly did not reflect his pre-accident disposition. He said his disposition changed. He became less tolerant of people and used the expression “snappier” and that in itself placed a strain on the relationship. He said his physical limitations were very much at the centre of his personal issues and employment.
The plaintiff said that since March 2000, he has been doing piecemeal labouring type work. He said initially he did very little for six months and lived off his lump sum superannuation and termination payout.
He endeavoured to carry out activities as a door-to-door salesperson, which required much footwork, but found “I just found over the years that my hip, more so now than then I suppose, but it does give me difficulty with prolonged walking. It gets sore and irritable”. He also said that he did some vineyard work in February to May 2000 when he was employed as bucket boy at McLaren Vale collecting buckets of grapes. He said there was a supervision type role involved in this work and described the hard work as “I’d be lying if I said I was entirely comfortable over the whole period that it happened, but I was able to deal with it over the season”. He said this work was during the warm weather. He noticed that his hip problems are certainly worse in the colder weather. What he did enjoy, he said, was doing an “honest day’s work for an honest day’s pay and interacting with people again on a one-to-one basis”. He readily conceded that it was something he had not been doing for a long time.
He said he had not been working now for about six months although he has had some employment through a labour hire company. He said he does have some problems with continued labouring work. His honesty is evident when he said:
“I do have some difficulties but I try and work around them. I mean I’ve certainly got no intention of trying to claim on them or WorkCover or something and saying ‘You’ve employed me and you’ve hurt me’ but I’m aware that I do have some limitations and like I said, I try and work around them. If I have to do a job that entails standing in one place all day I just make sure that I keep trying to move around. I take regular breaks and do some stretching and just try to look after my body.”
He confirmed that the nature of the physical activities, which causes him concern, are lifting and bending. This is mainly confined to the hip, but the knee at times feels a “bit sloppy but it’s not really causing me any significant pain”. The plaintiff said he views, particularly after his work at McLaren Vale, that his hip is slowly getting worse.
“.... when I did the grape season at McLaren Vale I had some moments where it was pretty uncomfortable but it was a liveable situation, I was able to recognise it and deal with it but since then I have had I guess a greater frequency of instances where I have had pain from the hip and as I said it is also a lot more pronounced in the cold weather. We were kind of lucky this year, I mean it wasn’t particularly cold but on the occasions where it was I had certain difficulties just doing everyday activities, getting out of a chair if I had sat there for too long, the hip would virtually give way on me.”
The plaintiff also produced a whole lot of applications that he has made for employment since leaving the tax office. The plaintiff conceded in cross-examination that:
“I put my hat in for everything. I don’t actually have any formal qualifications or trade behind me, so I was already limited in the sort of work I could approach; and, yes, as the job applications will show, I’ve applied for car sales, brick labourers, garden keepers; just about anything I could find. But, as I said, it wasn’t until November that I re-gained any sort of useful employment.”
In cross-examination it was suggested to him that he was travelling at 85kph prior to him applying his brakes and he said, “I would dispute that. I was doing my best to stay within the 80 km/h limit”. Again, when pressed on this issue, he reiterated in his answer:
“Oh, I didn’t have the presence of mind to stop and look and say ‘I’m doing 80 km/h I’m doing alright’ but it was my recollection that I was doing 80 km/h along that stretch because as I’ve indicated I knew that the traffic limits had recently been changed and that the police were red hot in that area and I didn’t need the extra fine.”
The plaintiff in his evidence readily conceded that he had a number of prior road accidents particularly on his motorcycle. In 1980 he fell off his trail bike and suffered some lacerations to his arm and leg. In 1984 he fell off a motorcycle and dislocated his right shoulder and received casualty treatment. This injury caused him some difficulties. He said the 1980 incident was a foolish mistake. It was the first time he had ever ridden a motorcycle. He said the 1984 accident, when he damaged his shoulder, was part of his learning process of motorbike riding.
He said he injured his right knee while surfing in 1993. In 1994 he collided with a motorcar when it pulled out of a car park. In that accident he injured his left shoulder. He said these injuries settled down and have not caused him any ongoing problems, although he still has occasional slight problems with his left shoulder and, particularly, it becomes a little sore after extended paddling and is a bit of a nuisance.
The plaintiff was cross-examined about his relationship with Sonya and then her subsequent friendship with a person known to the plaintiff. He explained the initial hurt of her new relationship, but in his sensible and subsequent rationalisation has accepted her position.
Ms S Sangster
Ms Sangster gave evidence and confirmed the nature of her former relationship with the plaintiff. She explained the nature of the plaintiff’s close relationship with her young daughter and son. She regarded her relationship with the plaintiff as sound and permanent and hence they embarked on jointly purchasing the Seaview Downs house. She said at that point of time:
“...., it was a good relationship. We just got on really well. Craig was actually quite funny to be around, he was yes, and we just got on really well. There was no real dramas. We both worked hard. I loved the way he really looked after - well then Lindsey became his daughter which really helped me a lot. Just a pretty good relationship. Better than most I would say, actually.”
Ms Sangster outlined hearing of his accident, attending Craig in hospital and then his rehabilitation at home. She described the nature of his suffering while in hospital. She said in the weeks after he returned home the plaintiff was totally reliant on herself and her son for all his needs. She described how the plaintiff could not sleep in the bed so she set him up in a separate room and in that time attended to his bathing and toilet requirements. The plaintiff’s movements were restricted because of the limiting factors of his hip brace that he wore for several months.
Ms Sangster noted the changes in the plaintiff after the accident. She said his personality changed after returning home and:
“Honestly, I thought his attitude was because of the pain and the immobility that he was suffering. But he honestly didn’t get much better. Mentally and emotionally he became a different person. Like you are going from this person you’ve known for two years to this person that, you know, it just didn’t compute. And affected my son a lot because he really looked up to him.”
She described the nature of the plaintiff’s new antisocial personality and how that affected their relationship and that of their circle of friends. She said she would say to him, “what’s the matter ....” and he would say, “I don’t know”. She said their relationship was “just really different”. She then described in genuine terms how their relationship fell apart. She outlined the manner in which the plaintiff disregarded everything and everyone in the home and his depression. She had never seen him cry before as he did at that point of time. She described him as angry, argumentative and his behaviour as “bizarre”, certainly a changed person.
Ms Sangster confirmed how after their split they were obliged to sell the house in March 2000 as she could not carry the burden of the mortgage payments and “Craig was not returning to work”.
Mr S Scott
Mr Scott confirmed the nature, at the relevant time, of his managerial position in the Australia Taxation Office. He was a team leader of the plaintiff’s investigative area. At that time he said the plaintiff was also a prosecutions officer and in that process he was able to observe the nature of how the plaintiff carried out his work. He said in this time he developed a friendship with the plaintiff and also met Ms Sangster.

Mr Scott said prior to the accident Craig was a diligent and conscientious worker in a professional way, and, there was certainly no question of his work ethic or his application to work and the manner in which he carried out his work. He said he was aware of the plaintiff’s accident and his return to work, and, then his resignation in March 2000.
Mr Scott said when the plaintiff returned to work he conferred with him and at the early stage it was apparent that the plaintiff had lost his humour and disposition. He described him as more solemn and a little disposed to, if not anger, certainly his conduct could be provocative on issues. It was his impression that the plaintiff seemed to be less concerned about his work results which clearly was not his prior disposition. He noticed the deterioration in his work. He also considered the plaintiff as being very depressed. He said it was his impression that the plaintiff became more belligerent and bellicose in the workplace and seemed less concerned with the quality of his work and more inclined to embark on social discussions than attending to his duties. He said that his attitude towards the tax office became significantly more provocative and confrontational.
Mr Scott said he had spoken to the plaintiff a number of times about his attitude but the answers were more about his deteriorating family situation. He said he had also had some contact with him about his non-attendance at work, and, his responses varied. He advised the plaintiff that he should seek medical assistance.
MEDICAL EVIDENCE
Mr A Pohl
Mr Pohl is a highly qualified orthopaedic surgeon. He attended to the plaintiff’s operational procedures. He has provided medical reports dated 4 August 1998 and 19 April 1999.
In his first report of August 1998 he sets out the extensive nature of the plaintiff’s injuries and the subsequent operational procedures that were undertaken at the trauma and fracture clinic at the Royal Adelaide Hospital.
Mr Pohl outlined that he had reviewed Mr Lawson following the accident and noted in April 1998 that he walked with a slight limp because of the knee injury and as expected he reported pain at the end of a long day. He noted in the earlier report that he was guarded in his prognosis because of the risk of him developing early or accelerated post traumatic osteoarthritis of the hip joint.
In his further report of April 1999 he commented that the plaintiff “has been left with something in the order of 12% permanent physical impairment and loss of physical function to the left leg”. He again mentioned the risk of the “osteoarthrosis of the hip joint. Unfortunately I am unable to quantitate that risk”.
Mr Pohl in his evidence outlined the difficulties in quantifying the osteoarthritis problem. As one has come to expect, his evidence was given in a most practical and scientific manner; refer to his evidence at page 222-223 and to a lesser extent page 225, and the summary on page 225.
Mr Pohl mentioned that he had an opportunity of attending the plaintiff on the morning of trial when he questioned him about his ongoing problems, and, in his view those answers did reflect a deterioration of his hip. From his questions, he felt that the signs are indicative of possible deteriorating function. Further answers to him tended to suggest that the plaintiff’s current symptoms show a deterioration of the hip joint function, and, therefore the symptoms are consistent with deterioration in the hip. Indeed, in his earlier evidence Mr Pohl confirmed that this is the type of fracture that has the worst prognosis and the only surgical procedure available is a total hip replacement. He summarised the cost of that procedure.
Mr Pohl confirmed that the plaintiff’s ongoing work particularly an overloading of the hip joint would lead to an accelerated deterioration. Anyone who undertook heavy manual work could expect rapid deterioration of such a joint and, indeed, moderate manual work would be to his disadvantage to a lesser degree. He said the plaintiff was fit for clerical type duties and best suited for work of a light physical nature that could allow him to move around intermittently.
Mr Pohl confirmed that the people who develop long-term hip problems do show some evidence within a five-year period and believed that the plaintiff fell into this category. He could not quantify the degree of deterioration. He said:
“If you would ask me is he more likely, or is he likely to develop this within five years or 12 years, I can’t quantitate only, I can only give grades. That would be the best if you pushed me beyond that point. But, the evidence that I have given you would be backed up by international findings on the relevance of early indicators on subsequent development of arthritis.”
Mr E Eriksen
Mr Eriksen examined the plaintiff on behalf of the insurers in November 1999 and gave a letter of report dated 22 November 1999. The plaintiff called Mr Eriksen to give evidence. In that report he outlined the nature of the plaintiff’s injury and confirmed that, in his view, the working activities should be of a clerical nature. He also commented, like Mr Pohl, of the “possibility that degeneration of a major weight-bearing joint could occur due to a structural abnormality of his left hip, and he will be susceptible to degenerative arthritis in the future”.
Mr Eriksen was called really to comment on the possibility of the degenerative changes in the plaintiff’s hip joint and confirmed, when answering, that he was a little forewarned and was aware of the evidence of Mr Pohl, whom he highly respected. He certainly would not disagree with the opinion of Mr Pohl. He felt that the plaintiff “had a 30% chance of developing arthritis over the next 10 or 15 years”. That percentage would increase with the type of work the plaintiff undertook. If he continued to do moderate manual work in a production line area of work that would increase the prospect of degenerative changes occurring. He outlined that if the degenerative changes occur they would have “painful restriction of hip mobility but as a corollary to that is that he would probably have a hip replacement”.
I perused the further medical reports, which were tendered and believe they do not add any further matters to the evidence as given by doctors Pohl and Eriksen.
PSYCHIATRIC EVIDENCE
Dr A Davis
Dr Davis saw the plaintiff in August 2000 and subsequently prepared a very detailed letter of report dated 29 August 2000. He again prepared a further report dated 8 June 2001 and gave evidence about the conclusions that he had reached in his examination of the plaintiff.
Following his initial attendance upon Mr Lawson and in his detailed report Dr Davis was of the view that the plaintiff had suffered an adjustment disorder with depressed mood, which emerged in late 1998 to early 1999. He outlined all the issues that were current in the plaintiff’s life which were existing at the date of the accident and which were on foot following the accident in and about the plaintiff’s daily life. It was this depressive disorder, which contributed significantly to his impairment and his work performance as well as the break up of his defacto relationship.
However, Dr Davis was of the view that the plaintiff had made significant improvement since this time and felt that he did not require any psychiatric treatment. His written report showed that he viewed “Mr Lawson’s depressive symptomatology was maximal in September, 1999, when he sought assistance from his general practitioner”.
Dr Davis simply said that he viewed the accident as pivotal and it triggered off a series of problems both on the emotional front and the relationship and indeed his work performance. He explained the reasons why he had arrived at very well rationalised reasons and why he described the accident as the pivotal cause of the plaintiff’s psychiatric problems.
I accept without reservation the evidence of Dr Davis and his assessment of the plaintiff and his conclusions. There was nothing in his lengthy and detailed cross-examination that in way causes me to detract from that finding.
DEFENDANT’S CASE
The defendant
The defendant outlined that on the day in question he had driven his four-wheel drive vehicle along Gorge Road to view the Kangaroo Creek Dam. It was a family outing with a visiting friend from overseas. He described his manner of driving from Athelstone to the lookout and was then proceeding to leave the lookout and travel to Lobethal. He described that he had parked his vehicle in the lookout entrance and that there were two exits from this car park onto Gorge Road. He initially drove into the viewing point from the Adelaide side, stopped parallel to the guard rail, looked at the dam and then decided to return to the car with the intention of travelling towards Gumeracha and continued to the westerly exit of that car park onto Gorge Road where he stopped on the edge of the carriageway. He said, “I looked both ways. I noticed that the road was clear so I began to pull out”.
He confirmed he did not notice anything coming in either direction. He said:
“I pulled out. I couldn’t tell you an exact distance; maybe about a metre, metre and a half and that’s when I first saw the motorbike coming appearing on the right-hand side around the corner. It was sight and noise at the same time, virtually.”
He indicated on the photographs where he believed he first saw the motorcyclist. It is not a view through the trees, but a clear line of sight to the motorcyclist. He said when he first saw him the car was still in motion and then he observed the motorcycle seemed to cross the white line, i.e., the centre. When he saw the motorcycle on the centre line, “I thought I’d better stop the car”. He stopped with the front of his car he felt on or in the area of the double median lines. He said as he was in the action of stopping the motorcycle came back across the white lines and on to its correct side of the road, it wavered, and he felt there was an intention to go past him but it hit the car. The front of the motorbike came into contact with the front fender guard of his vehicle. He then described the bouncing course of the motorcyclist after impact.
The defendant confirmed that he had attended the scene and measured from his line of sight to the corner in the area where he first saw the motorcyclist and it was a distance of approximately 95 metres. There was also a skid mark, which he estimated at 27 metres. The defendant, a geologist by trade, had outlined the nature of his driving experience and had calculated that a vehicle travelling at a maximum speed of 80kph and travelling 95 metres would take 4½ seconds.
Mr R Doyle
Mr Doyle was the ambulance officer who attended the plaintiff at the scene and transported him to hospital. He noted his serous injuries and was advised to administer morphine to relieve the pain. The history he obtained included a loss of consciousness. Mr Doyle said his notes contain a reference “Est speed 85-90kph”. Mr Doyle felt these notes would have been made whilst they were enroute to hospital.
I cannot place any reliance on this alleged admission of speed. One has to bear in mind the nature of the plaintiff’s injuries, extreme pain, loss of consciousness for some period, or periods, as well as the morphine injection.
LIABILITY
I find that the plaintiff was driving his motorcycle in a cautious manner down the Gorge Road being conscious of the maximum speed limit, and, the obvious attention of authorities to that road, no doubt because of the nature of its terrain and being a popular riding area for motorcyclists. The plaintiff was aware of the lookout facilities over the Kangaroo Creek Dam. The plaintiff rounded the bend riding his motorcycle at a speed not exceeding 80kph and as well being aware his front light was illuminated. At that point of time, he observed the defendant’s vehicle entering the carriageway.
One must bear in mind the admission of the defendant that from the area of the bend to the entrance of the car park was a distance of approximately 95 metres and at that speed even allowing for some deceleration, it would take in the order of 4½ seconds, or perhaps slightly longer, for the motorcycle to cover that distance. A very short passage of time.
The initial apprehension of the plaintiff with justification was that the defendant would stop his vehicle at the entry into the carriageway. However, in the moments then following it became apparent to the plaintiff that the defendant was proceeding into the carriageway, and in fact, did drive his vehicle across his lane of traffic. One can see the then momentary logic that would occur as in fact did occur with the plaintiff. Could he traverse in front of the car, which was then by that time blocking his path? This was fraught with all manner of difficulties. A major problem was the possibility of oncoming traffic and/or the terrain on the northern side of the road. On the left side of the road was the viewing point of the dam.
The plaintiff was placed in an impossible situation due to the course of the defendant’s vehicle across his path. The plaintiff also mentioned his immediate realisation of the behaviour of his motorcycle under speed and the manner, which he knew that that bike would react on braking. The collision was unavoidable.
One has difficulty in criticising the manner of the riding of the plaintiff. What more could he do? There may have been a momentary period when his mental processes were, “this driver will stop”. The driver did not stop and he braked quite heavily leaving the 27-metre skid mark. One could speculate that perhaps he should have taken more avoiding action by travelling on the wrong side of the road. This is immediately met with the contention of oncoming vehicles and all the problems of a head-on collision and/or whether there was sufficient time to enable him to traverse completely off the north side of the road. That, of itself, gives rise to all manner of difficulties.
His only option was to do what he did, to endeavour to forcibly brake. A collision, because of the manner of driving of the defendant, was inevitable.
As against this, the driving of the defendant was totally negligent. I accept his evidence that he may have stopped momentarily on the carriageway, but then was totally negligent in not seeing and/or hearing the approach of the plaintiff’s motorcycle. The important area is the fact that the motorcycle headlight was on. One can perhaps discount any criticism as to lack of hearing the approach. It may well be, for instance, that all windows were raised or there may have been some discussion between the occupants of the defendant’s vehicle. The defendant then proceeded to drive his vehicle so that it totally traversed the plaintiff’s lane of traffic having failed to see the approach of the motorcyclist until a very late stage. His lookout was totally deficient.
I accept the plaintiff saw the defendant’s vehicle at or about the mouth of the exit near the edge of the bitumen. The defendant did not see the plaintiff’s approach at all until the last minute when his vehicle by that time was totally straddling the plaintiff’s lane.
I believe the cause of the accident was the defendant’s total failure of lookout.
The decisions on vehicles turning into or across lanes in the face of oncoming traffic are indeed numerous. Much has been said about the obligations of each driver and/or the reasonableness to be expected of road users. The most convenient starting point in these matters is the comments of Cox J in Slatter v Kyalde Pty Ltd (1979) 22 SASR 196 at 198:
“There is a temptation, I think, in these cases to be wise after the event and to equate what the driver having the right of way should have done with what he could have done. It is reasonable to expect a motorist in the plaintiff’s position to drive at a moderate speed and to keep a careful look out and, in particular, to be watchful for any sign that the other driver has somehow failed to notice him. It is unreasonable, in my opinion, to require him to be so cautious and mistrustful as to be ready and able to avoid a sudden turn across his path by a driver who he has every reason to suppose has seen him and will give way to him. In this kind of situation an untoward movement across the road of only a few feet, taking less than a second, may turn a normal safe manoeuvre into a practically unavoidable collision. It is quite a different situation from the ordinary right of way case. It is not suggested that there was anything unusual about this particular intersection, or about the way the lorry was being driven, that should have warned the plaintiff of the lorry’s impending unlawful turn.”
I refer to the more recent Full Court decision of Campbell v Nangle (1985) 40 SASR 161. That case involved a collision occurring at nighttime at an intersection of a main priority road and a side street between a motorcycle travelling on the priority road and a car emerging from the side street and endeavouring to execute a right hand turn into the priority road. The car driver was also under a duty to give way to traffic in both directions. He stopped at the junction, looked both ways, and failed to see the motorcycle, which was approaching from his right. At first instance the trial judge apportioned a liability for contributory negligence of 20% against the driver of the motorcycle.
The Full Court unanimously reversed the finding of contributory negligence.
In considering the issue, former Chief Justice King observed at page 183:
“But until the car moved forward it was reasonable for the respondent to continue on his way at a normal speed. Only two or, at most three, seconds could have elapsed between the car’s first forward movement and the impact. There was little or no opportunity to avoid the impact. The speed of the motor cycle is not known and it is not known what, if any, avoiding action the respondent attempted. The mere carrying of the container of petrol is not of itself contributory negligence. It seems to me that the evidence is insufficient to provide a proper foundation for a finding of contributory negligence. I would reverse the learned trial Judge’s finding on that point.”
Jacobs J, in considering the question of the motorcycle’s contributory negligence, stated at page 196:
“The respondent, however, was held guilty of contributory negligence upon the footing that he had sufficient time and opportunity to observe the first forward movement of the appellant’s car, and at least brake or take other avoiding action. That finding, in my judgment, cannot stand. It was based upon a view of the ‘time-distance equation’ which, as stated earlier, was erroneous. If in fact the respondent had only about two seconds in which to react, instead of at least four or five, it would in my opinion be unsafe to impute negligence to him, more particularly as his reaction might have been delayed by the justifiable assumption that the stationary car would not move forward into his path. It is, in my judgment, an inescapable conclusion on the undisputed facts that the appellant really gave the respondent no chance.”
I simply repeat the very cogent words of Jacobs J in this case in that the defendant simply gave the plaintiff no chance.
Defendant’s counsel referred me to the earlier comments of the former Chief Justice in Norris v Siebel [1975] 12 SASR 317. However, my view is that the factual situation, as I have found, is distinguishable from the facts in that case, and, as well I would distinguish the reference to the recent case cited by counsel of Tran v Government Insurance Office of New South Wales unreported, delivered 25 November 1994.
In my opinion, the defendant’s liability for the plaintiff’s damage is made out against the defendant. I do not consider that the plaintiff’s conduct contributed to this accident.
DAMAGES
There is really no significant conflict in the medical evidence.
I have mentioned that I accept the evidence of Dr Davis. Effectively the problems, which developed in the plaintiff’s life, both social and at work, were triggered by this accident. In the words of Dr Davis, it was the “pivotal” event. This is supported from Dr Davis’ assessment of the plaintiff’s psychological profile. The plaintiff was a person who had invested a great deal of fitness and physical prowess. Ms Sangster described his outgoing nature. His work supervisor described his competence. The accident occurs. He is obliged perhaps for the first time in his life to rely on others. Prior to this he could carry out every type of employment. Post accident he is immobile and has a permanent loss of function. The consequences of the accident have had a devastating effect upon his life physically, socially and emotionally.
Physical incapacity - Past

The plaintiff underwent much pain and discomfort both at the time and subsequent to his surgery. He had a long period of rehabilitation. He was some three weeks in hospital with his legs strapped together. He said he had bowel problems, was bedridden then walking on crutches. One has to bear in mind the nature of the substantive brace that he had to wear after the accident. He was totally reliant on Ms Sangster for toileting and all his washing needs.
He then, on his return to work, had to be most careful in his movements and to take continual painkillers to relieve the pain. He worked within these obvious strictures. This all meant the onset of his depression. He has been left with significant and permanent residual disabilities both to his knee and more particularly his hip as diagnosed by the surgeons.
I find that his physical condition particularly in his hip is deteriorating. This is apparent from, for instance, what he suffered after he carried out the fairly heavy work at McLaren Vale. The plaintiff is not a person who I think will ever be totally inactive bearing in mind his limitations. By reason of his nature, he is a person who will always want to work and carry out work, which he should not, as in the nature of the work at McLaren Vale. When one looks at the nature of the work he has carried out this can only result in a marked deterioration of his hip. He is now having more frequent instances of pain and discomfort. This is evidence from a person who I think was understating his problems.
Added to this I accept the nature of the diagnosis as attributed to him by Dr Davis. Clearly there were many emotional and psychological factors then coming into play following the accident, which affected the whole of his social and working life.
The plaintiff is now 43 with permanent injuries, which have severely affected not only his health but also his mental wellbeing since the accident. I think he has reached a stage where there is no need for any further psychiatric intervention. He has accepted that his role in life is now limited.
In all the circumstances I propose to allot the numeral 18 for these injuries. The multiplier is 1530 making a sum of $27,540.
Past economic loss
I have examined the tax returns and schedule. The defendant calculated the loss of income from 4 January 1998 to 20 April 1998, as 15 weeks being a total figure of $8,209. It varied slightly from my cursory notes, but the schedule of past economic loss as proposed by the plaintiff’s solicitors was based on that period at a net weekly figure of $520. I award the sum of $7,800.
Interest on past economic loss
I allow a lump sum for interest of $2,000.
Future economic loss
The plaintiff returned to work on 20 April 1998. His tax return shows that as at 30 June 1998 his average weekly earnings were $540 and the following year, $595. He resigned on 17 March 2000. A calculation of his loss must be based on the figure of $595.
As appears from his tax returns, his earnings have been minimal since his resignation. On 30 June 2000 he had lived on his lump sum payments. In 2001 he earned the figure of $5,114, the following year $15,222 and to date this year $4,380.
I accept the plaintiff’s evidence that he looked upon himself as being a permanent employee of the Australian Taxation Office and was looking forward to, in his words, “a 10 to 15 year further span of employment”.
One has to bear in mind his nature to work A positive contingency is that he is able to carryout clerical type tasks as he did when working in the Australian Taxation Office, no doubt taking care in his movements. The heavy type labouring tasks he may well have undertaken in his earlier years are now not within his work abilities. The plaintiff indicated that he viewed his employment at the Australian Taxation Office as permanent and could well have continued in that vocation until aged 60.
There is always a large measure of judicial speculation in the determination of this sum. Often reference is made to a multiplier and the use of the average of the plaintiff’s prior income. I note the multiplier from Professor Luntz 4^th Edition of the 5% schedule for a 43-year-old male ceasing work at age 60 is 589. Often in this type of case an assessment is made by using the base of the last year’s income and the loss then of a number of certain years. As I have mentioned, there are significant factors to be borne in mind to rebate a gross figure.
A more preferable course is to consider his wage at the time of the accident, his age and the positive and negative contingencies affecting his work ability. At the extreme end, the heavy manual labouring tasks he carried out in the initial long period of his working life, he cannot now carry out. There is thus this area of loss of chance. Clerical duties of a light nature are within his capabilities.
Doing the best I can in all the circumstances I propose to award the sum of $80,000.
Gratuitous Services
Clearly in the weeks following his release from hospital Ms Sangster and her son provided constant attention to the plaintiff in the initial crucial weeks also in that following period.
I am proposing to allow the sum of $3,000 under this head.
Medical Expenses
A schedule has been produced to me, which shows the total special damages to date in the sum of $4,287.05, but I note that of this the defendant’s insurer has paid the sum of $3,791.75 leaving a balance owing of $495.30.
Future Surgery
I have endeavoured to summarise all the relevant evidence in regard to the likelihood of the plaintiff having a hip replacement. The current work ethic of the plaintiff is readily apparent. That does mean, as the experts agree, the increased likelihood that this surgery will at some time in the future be required.
The evidence of the cost of this surgery is from $15,000 to $18,000. It also entails a period when the plaintiff cannot earn an income.
Bearing in mind all these contingencies I propose to allow the sum of $10,000.
The position is as follows:

Pain and suffering - numeral 18 $27,540.00

Past economic loss 7,800.00

Interest on past economic loss 2,000.00

Future economic loss 80,000.00

Gratuitous services 3,000.00

Medical expenses 495.30

Future medical expenses 10,000.00

TOTAL

$130,835.30

There will be judgment for the plaintiff in the sum of $130,835.30.

Pain and suffering - numeral 18	$27,540.00
Past economic loss	7,800.00
Interest on past economic loss	2,000.00
Future economic loss	80,000.00
Gratuitous services	3,000.00
Medical expenses	495.30
Future medical expenses	10,000.00
TOTAL	$130,835.30

[2002] SADC 172

19 December 2002