Lee v McGrath
[2018] ACTSC 173
•14 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Lee v McGrath |
Citation: | [2018] ACTSC 173 |
Hearing Dates: | 4 June 2018 – 12 June 2018 |
DecisionDate: | 14 June 2018 |
Before: | Elkaim J |
Decision: | 1. Judgment for the defendant. 2. The plaintiff is to pay the defendant’s costs of the proceedings. |
Catchwords: | TORTS – NEGLIGENCE – Motor vehicle accident – whether the defendant breached her duty of care to the plaintiff – whether the defendant’s negligence caused the harm – claim of contributory negligence – calculation of damages – nature and extent of injury |
Legislation Cited: | Civil Liability Act 2002 (NSW) ss 5B, 5D and 5R Civil Law (Wrongs) Act 2002 (ACT) ss 43, 45, 46 and 102 Motor Accidents Compensation Act 1999 (NSW) s 138 |
Cases Cited: Texts Cited: | Anikin v Sierra [2004] HCA 64; 211 ALR 621 Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139; 86 NSWLR 393 Steen v Senton [2015] ACTCA 57; 302 FLR 440 Harold Luntz, Assessment of Damages for Personal Injury and Death: General Principles (LexisNexis Butterworths, 4th ed, 2006) |
Parties: | Grant Lee by his litigation guardian the New South Wales Trustee and Guardian (Plaintiff) Mikaela Ann McGrath (Defendant) |
Representation: | Counsel Mr G Stretton SC and Mr J Ronald (Plaintiff) Mr K Rewell SC (Defendant) |
| Solicitors KJB Law (Plaintiff) Sparke Helmore Lawyers (Defendant) | |
File Number: | SC 200 of 2013 |
ELKAIM J:
The plaintiff was born in 1993. On 27 March 2009, when he was 15 years of age, he was crossing Clift Crescent in Richardson in the Australian Capital Territory (‘ACT’), as a pedestrian. He was struck by a motor vehicle driven by the defendant. He suffered catastrophic injuries.
The plaintiff has sued by a litigation guardian. His case is that his injuries were caused by the negligence of the driver of the motor vehicle (the defendant). The defendant has denied negligence. In the alternative, she submits that if she was negligent, so too was the plaintiff. Accordingly, there should be a reduction for contributory negligence.
The plaintiff’s claim for damages is made under the following heads: general damages, past and future economic loss; and the expenses of past and future medical care. Interest is also claimed, where appropriate.
As the plaintiff’s medical condition and care needs are really beyond dispute, the parties agreed on a number of items of damage. These are set out below.
The parties also agreed that the plaintiff’s life expectancy is 33 years from the present day.
The largest area of dispute in respect of quantum was economic loss. The plaintiff’s figures are based on average weekly earnings, calculated from the date he turned 18 to age 65. The defendant submits that, having regard to the plaintiff’s personal history, he would not have attained this level of income by the date of hearing or during his working life.
The plaintiff
Although, as I have said, there is practically no dispute about the plaintiff’s current condition, I was asked to hear oral evidence from him. This necessitated travelling to Sydney and, in particular, to the headquarters of the institution where he resides. The plaintiff is a severely disabled man. This was very evident to me as he sat in his wheelchair, with his legs bound to the chair, his right arm and hand overtly spastic and his dyspraxia causing him to search for clues to words on an alphabet attached to the tray on his wheelchair. Despite this, the plaintiff impressed as a man with a sense of humour, struggling to find a light side to his daily struggle.
The plaintiff described various aspects of his treatment. In particular, he said he disliked Botox injections. They were painful.
The plaintiff does not remember the accident. He could identify one of the persons he was with on the day. This was his cousin, Josh Winters. He also remembered that he had a friend called Scott Bradbery, but could not recall whether Mr Bradbery was present on the day of the accident.
[Redacted for legal reasons]. The plaintiff thought that he had been living with his father at the time of the accident, although this may not have been correct. He recalled living with his aunt (Melissa, Josh’s mother) and leaving school during Year 10.
The plaintiff said that he would like to live with his father, who visits him once a year from Grafton. Another witness said that this was the highlight of the plaintiff’s year.
Following the plaintiff giving evidence, I heard evidence from a registered nurse who manages the home where the plaintiff lives (Ms Griffin). Ms Griffin specialises in learning difficulties. She described the severe seizures that the plaintiff had experienced in 2014 but said that these had much improved since a change of medication to Epilim. Ms Griffin described the plaintiff as having a good sense of humour, easy to get along with and helpful, often translating the sign language that some of his fellow housemates use.
Ms Griffin said that the plaintiff is sometimes cranky and that his mood fluctuates. She described his daily routine, which essentially requires one or two staff to be available. Two persons are needed to move him in or out of bed and one person is required to help him in the shower. It is necessary for a nurse to be on duty overnight in case of seizures.
Ms Griffin gave a graphic description of the reasons behind the plaintiff’s dislike of Botox injections. They were administered over a three to six month period, during which the plaintiff was required to wear a splint on his arms for up to 20 hours a day. The Botox is given to combat spasticity. More recently, the injections were given without the need for splints. This was a more comfortable treatment for the plaintiff.
Ms Griffin said that the level of the plaintiff’s funding sharply decreased when the National Disability Insurance Scheme took over. Plainly, the grand intentions of the scheme have not translated to the plaintiff’s benefit. He has had to have less speech therapy and other services have either been curtailed or diminished. Ms Griffin said that the plaintiff would benefit from physiotherapy. I accept that this is not her area of expertise and treat her opinion with respect but not with the same weight as if it had come from a physiotherapist.
Once the evidence was completed, I travelled to the home which the plaintiff shares with eight other disabled persons. I was shown to his bedroom, where there is a hoist above his hospital type bed. The room was adorned with personal effects, including a banner representing the Broncos, his favourite rugby league team.
A good deal of insight into the plaintiff’s upbringing was provided by his grandmother, Mrs Ann Lee. Mrs Lee now lives on the New South Wales (‘NSW’) Central Coast. She said that she and her son, Robert Lee, left Canberra in about 2006. Her son is the plaintiff’s father. Her daughter is Melissa Winters, the mother of Josh Winters.
Mrs Lee said that she did not get on well with her daughter and she disapproved of her lifestyle and that of her grandson Josh. She said that they were a bad influence on the plaintiff. She said that she had made attempts to remove the plaintiff from their influence by offering him accommodation at her home on the Central Coast. The offer was first made in about 2005. It was conditional upon the plaintiff going to school and, in essence, behaving himself. Mrs Lee acknowledged that [redacted for legal reasons] his living with Mrs Winters was of no benefit to him.
Mrs Lee’s evidence was largely corroborated by the plaintiff’s father, Mr Robert Lee. There was a difference between these two witnesses about when they left Canberra to move to NSW. Mrs Lee thought it was in about 2006. Mr Lee said they moved at the end of 2008. The difference is probably of little importance. Both witnesses said that the plaintiff refused their many offers to join them in NSW. Mrs Lee’s dislike of Melissa Winters and Josh Winters was shared by Mr Lee.
Mr Lee unfortunately has a long-standing back condition which has put him on a disability pension. His condition and his lack of financial resources have restricted his capacity to visit his son.
I asked Mr Lee why he thought the plaintiff had gone ‘off the rails’. He said that the problem started at the beginning of high school when his son, seemingly as a result of the companions he was mixing with, took the view that there was no need to comply with rules and regulations and simply refused to conform as one might have expected of a young school student.
I cannot say whether the plaintiff’s behaviour was a product of keeping bad company or some inherent dislike of conformity, or perhaps a combination of both. Whatever the case, by the time of his accident he was showing no signs of adopting a more responsible attitude to his daily activities. [Redacted for legal reasons].
I cannot of course disregard the possibility that sooner or later the plaintiff would have realised there were other options and begun a more responsible existence. I think I can say that it is not probable that, by age 18, he would have been in fulltime employment earning the average weekly wage, as claimed by the plaintiff.
Mr Josh Winters gave evidence about both liability and quantum. I will return to his liability evidence below. In relation to the plaintiff’s background, he described the plaintiff as “like a brother” with whom he spent a good deal of time. He acknowledged that he had not been a law-abiding person and had spent some time in prison since the accident. This included some four years arising from a culpable driving offence and a further 15 months due to one or more burglaries.
Mr Winters is currently working as a demolition labourer, but he has only been in his present job for about a month, having been released from prison in February 2018. He has had scattered employment when he has been at liberty. Although he is now earning $1,250 per week, before tax, that certainly cannot be used as a comparable wage upon which to base the plaintiff’s earnings but for the accident. If Mr Winters is viewed as a comparable earner, then he is obviously capable of earning an income at this level but not on a fulltime basis.
Liability
Liability is the major area of dispute in this case. As already noted, the plaintiff has no memory of the accident. I heard evidence about the accident from the defendant, one of the boys (now men) who were with the plaintiff when the accident occurred and from a motorist who was near the scene. A police officer gave evidence about his investigation of the incident. I did not hear evidence from the second friend of the plaintiff who was with him when the accident occurred. This is Mr Scott Bradbery. He is apparently in prison. I rejected the tender of his statement because I was not satisfied that he was not available within the terms of s 63 of the Evidence Act 2011 (ACT).
In addition, I had the benefit of a view, which assisted in providing an understanding of the scene, the paths of travel of both the plaintiff and the defendant and the lines of sight available to the driver and pedestrian.
My impression from the view was that the line of sight available to a driver of a person emerging from the pedestrian access was not as restricted as might be gleaned from the experts’ various calculations and diagrams. I had the impression that a driver proceeding in a southerly direction along Clift Crescent, at about 50 km/h, would have had a reasonable view of a person crossing the nature strip and moving towards the roadway, even at a jogging or a running pace.
Each side relied on an engineering reconstruction report. They reach very different conclusions. This is notwithstanding that they agree on many of the elements of the accident.
The plaintiff’s expert says the driver “had ample opportunity to apply the brakes and change the outcome of the event and avoid striking Grant Lee”. The defendant’s expert thought “there was virtually no prospect or indeed it was impossible for the Defendant to have avoided the collision…”
I will return to the experts’ reports in more detail below. However, I note here that they were accepted into evidence on the basis that any factual assertions made within them would not form part of the evidence unless otherwise proved. Thus, when the statement of Mr Bradbery was tended and rejected, it automatically played no part in the experts’ reports, even though it is included in them. Similarly, the police crash summary details, which are recorded on page nine of Mr Grzebieta’s report, must be ignored.
Another matter which I will note here on the issue of liability is that the plaintiff’s initial case, as stated during the opening by Senior Counsel, but which is not part of the assumptions used by either expert, is that the plaintiff stopped at the side of the road before commencing his run across the road. This factual scenario is derived from the record of interview between the defendant and a police officer on 27 March 2009.
In the course of the interview, this question and answer occurred:
Police: That’s alright. We don’t need the specific streets. Can you explain to me what happened once you’ve gone to Clift Crescent please
Mikaela: I was driving down here and then I saw two boys sprint across the road one after the other and then they looked back so I thought they were going to run back again so I slowed down a bit and then when I saw him run across to the other, like he stood on the island, and then he ran across to the other side of the road he looked to the left and I thought he would have seen me but I was slowing down just as a precaution and then he ran out in front of me and I braked.
The interpretation drawn by the plaintiff from this answer is certainly available but might be regarded as something of a broad interpretation. More importantly, the above passage must be read in the light of later answers given by the defendant, including the following:
Police: Okay. Can you describe again how the three guys ran across the road please.
Mikaela: Well the first two ran across. Like I saw them run out of the bushes. They were sort of at a sprint pace and then I slowed down because I thought they were going to run back across the other way and then the third guy ran out from behind on the path and then I thought he was going to stop but he just kept running on.
…
Police: Okay. And what happened when you saw him
Mikaela: Because I was slowing down for those other two I started up but then I stopped, I like kept slowing down and then I thought he was going to stop and so I just went normal and then he hit me so I braked.
In my view, the defendant’s oral evidence confirms the impression that I have from the whole of the record of interview, namely that the plaintiff did not stop at the side of the road before running across the roadway. Further, it was never put to the defendant that this had occurred. I will therefore proceed on the basis of the assumptions made by the experts, namely that the plaintiff was running (albeit at different speeds) at all times while within the vision of the defendant.
This is a convenient point at which to deal with the defendant’s oral evidence. She was an impressive young woman who was obviously doing her best to tell the truth. Where the contents of her statement to a Mr Bagnall seemed inconsistent with her oral evidence or otherwise wrong, she freely admitted that to be the case.
The defendant said that she was familiar with the area. She was travelling along Clift Crescent at about 60 km/h. After she had rounded the bend, she saw two males run across the road. They were very close to each other but one was slightly in front of the other. They were sprinting or at least running.
One of the two males paused at or near the concrete island and then carried on. When they had both reached the other side of the roadway, they turned to look behind them.
The defendant said that, after seeing the two men run across the road, she took her foot off the accelerator and hovered it over the brake pedal, in case they ran back again. She thought that this was a possibility because one of them had looked back in the direction from which they had run.
After the defendant returned her eyes to the road, she noticed the plaintiff about two steps from the roadway. He was running and as he did he looked to the left. She hoped that he would look in her direction and see her, but he did not. She applied the brakes. By this time, she had either collided with the plaintiff or was about to. I do not think that the distinction is of any significance.
The defendant said that there was about three metres between the point at which the plaintiff would have emerged from behind a bush and the point where she first saw him. Her explanation for not seeing him for over three metres was that she had been distracted by the other two males. This, in my view, is the most crucial point in the evidence.
I had the impression from the defendant’s evidence that the first two males had crossed the road before the plaintiff had begun his crossing. Because I considered this to be an important point, I confirmed my impression with the defendant:
HIS HONOUR: I just want to ask you one thing and please tell me if you don’t remember. Okay? When you saw that boy on the left, had you already seen the other two reach the other side of the road?
MS MCGRATH: They were on the other side of the road, yes.
HIS HONOUR: And looking back?
MS MCGRATH: Yes.
HIS HONOUR: So they’d already arrived. They had crossed the whole road before the third one even got to it?
MS MCGRATH: Yes.
The importance of the evidence is that I think it gives rise to the best argument in the plaintiff’s favour. The two males had completed their crossing of the roadway. Although the fact that they were looking back might have raised a possibility of them returning, they had in fact ceased to be a relevant potential danger to the defendant.
It was submitted that the defendant should have looked back significantly earlier than she did and, had she done so, she would have seen the plaintiff running towards the road over a greater distance and she might have taken action to avoid him.
The plaintiff also submitted that the defendant’s reaction to seeing the first two males run across the road, which would have at least given an impression that one or both of them might have returned, should have caused the plaintiff to apply the brakes and slow the vehicle down significantly. Had she done so, when the plaintiff came into view, she would have been travelling at a much slower speed and have been in a position to either stop the vehicle or avoid a collision.
The submission is essentially that the defendant’s reaction to the first two males was negligent and that this negligence should be seen as part of the whole of the circumstances leading to the collision. I disagree. Firstly, the submission essentially describes a situation in which the plaintiff becomes a coincidental beneficiary of an action that the defendant should have taken. Secondly, I do not think it was negligent of the defendant not to slow down for the two males. The danger they had posed had passed. They had crossed the road. While she might have properly considered the possibility that they might return, she was alert to this possibility by covering the brake pedal and ‘keeping an eye’ on them.
Further, the plaintiff’s submission ignores the fact that, had the first two males not been present, the defendant would have been looking straight ahead and may well have been able to avoid the collision. I cannot see how any act of negligence of the defendant (which I cannot identify in any event) in reacting to the actions of the first two males can be construed to the benefit of the plaintiff.
The plaintiff also submitted that the presence of the walkway should have alerted the defendant to the possibility of pedestrians and dictated her driving style. In other words, she should have assumed the possibility of pedestrians and driven in a manner that would have catered for their possible presence. This would certainly have been the case had there been a dedicated pedestrian crossing or if there had been pedestrians in the area of the roadway alongside the walkway entrance and the concrete island.
In this case, the only pedestrians were the two males who ran across the road. The plaintiff was not then visible and there was no reason for his presence to be anticipated. In addition, this was not a situation such as driving near a school, or in the presence of schoolchildren, or in any other circumstance that might have alerted her to the possibility of a person running out from behind a bush.
Both parties urged that I should avoid an overly analytical approach of separating the events into small passages of time. They said that I should take a global approach to events that happened over a very short period of time. This approach, I think, emphasises the lack of negligence on the defendant’s part as she reasonably reacted to the presence of the first two males and was not to know about the soon to emerge plaintiff. McColl JA described the appropriate inquiry in Mobbs v Kain [2009] NSWCA 301 in this way at [103]:
It is not reasonable, in my view, to require the second appellant to slow down to whatever speed would have avoided the accident. Leaving aside the high level of abstraction at which such a conclusion is expressed and its failure to address the particular risk, it is, in my view, the product of impermissible hindsight reasoning. The s 5B/Shirt inquiry requires the Court to look forward to identify what a reasonable person would have done in the circumstances, not backward to identify what would have avoided the injury: New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486 (at [57]) per Gummow and Hayne JJ; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 (at [126]) per Hayne J.
The defendant was definitely distracted by the first two males. This distraction was, however, a reasonable reaction to their conduct. It is possible to take the view that the defendant should have looked back to the road ahead of her sooner than she did. I do not think that the evidence allows such a conclusion. Nevertheless, if that is the case, this might have been a basis for a finding that she had failed to keep a proper lookout.
If I had made such a finding, the plaintiff would still need to overcome the issue of causation. I will return to causation below.
A related causation question, which I will also return to, is that, having seen the plaintiff when the defendant did, the assumption or hope that he would look to the right might well have been the taking of a risk. The defendant accepted that she had taken a risk, but submitted that by this stage the collision was inevitable.
I should point out here that no medical or other expert evidence was called to suggest that the plaintiff’s injury is, or could have been, different if the vehicle was travelling at a different speed. While I accept as common sense that if the vehicle had been travelling at, say, 10 km/h there is unlikely to have been any brain damage suffered, the plaintiff did not run the case in a way that would allow me to conclude that the injuries would not have been caused if the vehicle had been travelling below a particular speed.
The possible breach of duty of care which I have described above is based on the defendant’s evidence which, as I have already said, I accept. It is correct to say that, as the defendant appropriately conceded, her oral evidence may be less reliable now than it was at closer to the accident. However, I think there is consistent evidence in her statement to the police, in particular in the above quoted portions.
I cannot comment on the statement to the investigator other than the paragraphs in respect of which the defendant was cross-examined. The defendant objected to the tender of the balance of the statement. The permissible parts of the statement became Exhibit J.
At this stage, it is necessary to look at the other oral eyewitness evidence. This came from Mr Josh Winters and Mr Winbank. As already noted, Mr Winters is the plaintiff’s cousin. The other was Mr Winbank.
According to Mr Winters, when he jogged across the road the plaintiff was within half a metre behind him. That being the case, he was nearly struck by the vehicle. He had not, however, seen the vehicle before crossing, despite asserting that he had looked to his right before entering the roadway. Mr Winters was a very unsatisfactory witness, perhaps suffering from the long period that has elapsed since the accident or perhaps because of a misguided desire to assist his cousin.
I am satisfied that there was some distance between Mr Winters and the plaintiff. This is consistent with the defendant’s evidence that the first two males had completed their crossing of the roadway before she saw the plaintiff. It is also consistent with the evidence from Mr Winbank.
There is only one matter on which I accept the evidence of Mr Winters and it is to some degree based on drawing an inference from his evidence. This was that the plaintiff was following the same path that Mr Winters and Mr Bradbery had taken in crossing the road. My acceptance is derived from the consistency of this evidence with that of the defendant and of Mr Winbank.
Mr Winbank lived at Chauncy Crescent at the time of the accident. He was stationary at the intersection with Clift Crescent, intending to make a right-hand turn into Clift Crescent. He was therefore directly opposite the walkway and had an unobstructed view of the males emerging from the walkway and of the defendant’s vehicle travelling along Clift Crescent.
Mr Winbank said that first two males sprinted at an angle across the road. They were almost struck by the vehicle, which had slowed down as it approached. Although he said that the vehicle had braked, his evidence is equally consistent with that of the defendant to the effect that she had simply taken her foot off the accelerator allowing the vehicle to slow down.
Mr Winbank said the plaintiff then followed and ran into the vehicle. He was sprinting and he did not look one way or the other. Mr Winbank made two important observations: firstly, the plaintiff was 20 to 30 metres behind the first two males and, secondly, he was following the same path of travel as the two males.
Mr Winbank was a straightforward witness who said that, despite the passage of time, he still felt the shock of what he had witnessed. I accept that his evidence before me was an honest account of what he believed had occurred. There are elements of his evidence that I accept, particularly because they accord with the evidence of the defendant. There are other elements which I reject as simply being impossible. The most striking example of the latter is Mr Winbank’s assertion that the vehicle almost struck the first two males.
If the vehicle just missed the first two males and if the plaintiff was following the same path, or track, as the two males then he must have been very close behind them. He could not have been 20 to 30 metres behind because, in that scenario, the vehicle, having just missed the first two males, would have continued on its path without colliding with the plaintiff.
Mr Winbank made a statement to the police. It did not go into evidence. There was a question about one paragraph in it. Other than that paragraph, the statement must therefore be excluded from the experts’ reports and their consideration of it.
Mr Winbank made a probably inadmissible statement of opinion which accords both with the evidence of the defendant and my overall view. No objection was taken to his statement which was:
She wouldn’t – she wouldn’t have seen the third guy cause she was too busy distracted by the first two.
…she was too distracted by the first two, I guess, and then she – as she went to – to proceed because she just missed two kids running across the road, the other guy hit the car. She wouldn’t have seen him. I don’t reckon she would’ve had a chance to see him.
I agree with Mr Winbank although I say so only as a matter of observation rather than attributing any basis for reaching my conclusion to Mr Winbank.
Turning now to the experts. The plaintiff cautioned me to heed the warning of the High Court in Anikin v Sierra [2004] HCA 64; 211 ALR 621 at [28]:
Different minds might respond in different ways to the evidence given at the trial. Much time was consumed there by the evidence of experts. Sometimes such evidence may be helpful in describing technical developments of motor vehicle design (such as the evolution and capacity of modern motor vehicle headlamps) or in applying to uncontested facts commonly accepted tables governing the distance travelled by motor vehicles at different speeds and stopping time allowing for differing driver reaction times. Not all judges are mechanically minded or interested. Expert evidence, grounded in the proved testimony, can therefore occasionally be useful. But in the end, such evidence has weight only in respect of matters within the relevant field of expertise and is only as helpful as the evidence and assumptions on which it is based. Such evidence may not usurp the ultimate decisions which remain for the trial judge. In the present case, the expert reports had (and were treated as having) relatively little significance. In the end, the evaluation of the case depended substantially on the acceptance or rejection of the evidence of the bus driver and Mr Fatches and the application to the facts, as then found, of largely undisputed evidence concerning the illumination in front of the bus and the likelihood that it would have revealed the presence of the appellant in time to permit the avoidance of impact.
I agree with the aptness of the plaintiff’s submission. Nevertheless, the experts did provide in their reports useful observations, diagrams, photographs and calculations. In addition, their oral evidence, which was given concurrently, did allow for discussion of relevant issues and, in particular, assisted me on the issue of causation.
I note that Mr Keramidas agreed with the reservations that need to be placed on the expert reports. He said:
…Inevitably any change in the parameters will result in a change in the conclusions. As to whether the changes are significant enough to change the ultimate conclusions of, for example, collision avoidance, will depend on how much that parameter is changed. I’m not sure whether your Honour has seen our reports, but based on the witness accounts that we had in statement form, there was so much variation between movement paths, all sorts of things, that in fact I think I ended up with five or so scenarios that I had to consider. To assist, your Honour, I think if any of those parameters have been reduced or narrowed, we may be of greater assistance than otherwise.
In their reports, both experts listed the facts that they had before them. These formed the assumptions on which they proceeded. Some of these assumptions were based on the statements of various persons. Not all of these statements came into evidence and some of the contents of the statements have undergone subtle changes through the oral evidence.
I would like to add at this stage that the Court benefited greatly from the use of concurrent evidence, which allowed for an open discussion between the experts unimpeded by forceful cross-examination designed to attack the experts’ opinions. The capacity of the experts to comment upon each other’s views allowed for a much more useful appreciation of their respective positions.
The most significant area of contention between the experts related to the location of the point of impact. Mr Keramidas derived his point of impact from the assumption that the plaintiff would have followed the same path as that taken by his two friends. He derived his assumption from the statements of the defendant and Mr Winbank. In this regard, nothing was said in the oral evidence of either of these two persons to cause Mr Keramidas to change his assumption.
Mr Grzebieta based his point of impact on the plaintiff following a different path to that previously taken by the other two males. He assumed that, if the other two males had reached the other side of the road and were at or near the bus stop, the plaintiff would have adjusted his route so as to direct himself towards the bus stop. This would have meant he collided with the defendant about four or five metres north of Mr Keramidas’ point of impact. If this was the case, and subject to other issues of speed of both the vehicle and the plaintiff, the defendant may have had a greater opportunity to avoid the accident.
There is a good deal of evidence to support Mr Keramidas’ assumed path of travel. As already stated, it is consistent with the statements and evidence of the defendant and Mr Winbank, and it is also consistent with the evidence of Mr Winters. Mr Grzebieta’s assumption has no evidentiary basis. It might be a reflection of common sense to say that the plaintiff would have run towards his friends but there is no other support for this proposition. In addition, it is to be recalled that the plaintiff looked to the left before crossing the road. It may even be that he never knew where his friends were located.
The next point of contention between the experts was the speed at which the plaintiff was running. Essentially, the question was whether he was the jogging quickly or running “flat out”. Mr Grzebieta suggested the former. Mr Keramidas assumed the latter. Mr Grzebieta’s assumption is based on Mr Winbank’s statement to the police where he said that the plaintiff appeared to be “straggling” behind his friends. Mr Winbank was asked about the manner in which the plaintiff was running in his oral evidence. He said that “they all come bolting out of the cul-de-sac”. He said that the plaintiff was “flat out the whole time” and, under cross-examination, said that “he was running flat out”.
The parameters assumed by Mr Keramidas were based on evidence that was available. They are, of course, subject to fluctuations but must be preferred to the basis upon which Mr Grzebieta came to his point of impact.
Assuming the correctness of Mr Keramidas’ point of impact, the experts came to this conclusion in an agreed report, which became Exhibit K:
The experts agree that if the assumptions regarding; the point of impact, and speed of the vehicle, pedestrian speeds, and pedestrian path(s) are altered, then the results would change. To that end, the experts agree that if the point of collision (and therefore half of the Plaintiff) was within the area of the centre island (±1 metres from the centre), adopting the assumptions presented by Mr Keramidas in his primary report of 26 November 2014, then the collision was unavoidable with a range of impact speed as previously announced, being 32 to 45 km/h.
Ultimately the question of causation comes down to whether the plaintiff can establish that the point of impact was in the position nominated by Mr Grzebieta. If not, the accident was likely to have been unavoidable.
Causation is governed by s 45 of the Civil Law (Wrongs) Act 2002 (ACT) (‘the CLW’). It states:
45 General Principles
(1) A decision that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
(2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1 or more of them—
(a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
It is clear from the authorities that s 45(1), like s 5D(1) of the Civil Liability Act 2002 (NSW) (‘the CLA’), establishes a ‘but for’ test. It is also plain that the onus in respect of causation is always on the plaintiff. Section 46 of the CLW states:
46 Burden of Proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation.
It is impossible to know which path, assuming it was even one of the nominated two paths, had been taken by the plaintiff. Mr Keramidas’ assumption has a good deal of support in the evidence. Mr Grzebieta’s assumption has none. With the onus being on the plaintiff to establish causation, the only available conclusion is that he has failed to do so.
The second question noted above on causation concerns the defendant taking a risk in assuming the plaintiff, after looking to the left, would look to his right, see her vehicle and stop or take other evasive action. On my acceptance of the defendant’s evidence, this scenario only allows her the time during which the plaintiff, running, covered about two metres, to apply her brakes and avoid a collision. The accident was, however, by this stage inevitable. The taking of the risk, while perhaps unjustified, was not a cause of the collision.
Accordingly, even if there was a breach of duty of care on the part of the defendant, the plaintiff has not established liability because he has not proved that any breach caused his injuries.
If I am wrong on liability, contributory negligence would have been the next step. The existence of contributory negligence was conceded by the plaintiff. The plaintiff suggested contributory negligence should be assessed at 20%. The defendant suggested 75% or 80%.
The defendant suggested two different percentages to reflect an argument on the approach to be taken in the assessment of contributory negligence. This arises from two decisions in the NSW Court of Appeal, both of which are majority decisions. The two decisions are T & X Co Pty Ltd v Chivas [2014] NSWCA 235 (‘Chivas’) and Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139; 86 NSWLR 393 (‘Cosmidis’).
The question that arose in these two decisions was whether the long-held approach to assessing contributory negligence, as set out in Pennington v Norris (1956) 96 CLR 10 (‘Pennington’), should be changed in light of the CLA. Under the Pennington approach, in assessing contributory negligence, there was effectively a loading placed on the driver of a motor vehicle where there had been a collision with a pedestrian, to reflect the driver’s control of a vehicle capable of causing significant harm.
The approach adopted by Basten JA in Chivas and Cosmidis removes the ‘loading’ and assesses contributory negligence on the comparative acts of negligence of the parties involved. Thus, for example, if a driver and a pedestrian were both negligent in that they had both failed to keep a proper lookout, then contributory negligence, without more, might be assessed at 50% to each party. Under the Pennington approach, the driver’s control of the dangerous vehicle would be taken into account so that contributory negligence might be assessed in the order of 75% to 25% against the driver.
Basten JA derived the need for a change in approach from ss 5B and 5R of the CLA. These sections are as follows:
5B General Principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2)In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken,
(b) the likely seriousness of the harm,
(c) the burden of taking precautions to avoid the risk of harm,
(d) the social utility of the activity that creates the risk of harm.
5R Standard of Contributory Negligence
(1)The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2)For that purpose:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
His Honour explained his reasoning in Chivas in this way, at [54]:
The significant, if subtle, change of emphasis which arises from the enactment of the Civil Liability Act raises a doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage. That factor should be understood from the perspective of both the driver and the pedestrian, rather than as an independent consideration. To treat it as an independent consideration may lead to the conduct of the driver being judged against a higher standard than that of the pedestrian. Each should be equally conscious of that factor and adjust his or her behaviour accordingly: the driver by taking greater care for the pedestrian; the pedestrian by taking greater care for his or her own safety. It appears to have been this factor, however, which led the trial judge to place a greater share of responsibility on the driver than the pedestrian.
Beazley P dissented in Chivas because she thought that s 5R did not have the effect suggested by the majority. She said that the important provision was s 138 of the Motor Accidents Compensation Act 1999 (NSW). Her Honour said at [16]:
For his part, the deceased acted either with a high degree of carelessness, or made a serious error of judgment in respect of the oncoming taxi. However, the driver of the vehicle not only acted with a high degree of negligence in driving in the manner he did, the likely seriousness of the harm in the driver not taking the precaution of driving more slowly was such that the taxi driver should bear a high proportion of the blame for the accident.
In Cosmidis, Basten JA extended the reasoning behind the change of approach to rely on both s 5R and s 5B. He said at [99] – [100]:
Assuming that the requirement that people should take responsibility for their own lives and safety is now reflected in s 5R, and was intended to override the approach of Murphy J in Watt, there is a question as to whether the statements in Talbot-Butt still reflect the law in this State. The potential dangerousness of heavy machinery and fast vehicles can no doubt be applied universally, although the consequence of its application will vary depending on whether one, both or neither party is in control of such a vehicle. On the other hand, applying the general principles in s 5B(2) one could approach the matter differently. Thus, the probability that harm would occur if care were not taken and the likely seriousness of the harm would operate differentially with respect to the driver of the forklift and the pedestrian, but with the same result. That is, no distinction is made between the fact that in from one perspective the driver is in control of a vehicle that could cause serious harm to a pedestrian, whilst from the perspective of that pedestrian, it was the likelihood of serious harm which was to be considered. If the plaintiff were aware, or ought to have been aware, of the presence of a large forklift operating in the area and if the forklift driver were aware, or should have been aware, of the likely presence of pedestrians, and if each were equally careless, liability should be shared equally.
A purposive approach to the operation of s 5R (and s 5B) requires that this approach be adopted. To approach the matter in this way is not to decline to follow applicable earlier authority of this court. Talbot-Butt long pre-dated the Civil Liability Act; it also pre-dated s 74 of the Motor Accidents Act, the forebear of s 138 of the Motor Accidents Compensation Act.
McColl JA dissented in Cosmidis. His Honour, like Beazley P in Chivas, referred to s 138 and also to s 9 of the Law Reform (Miscellaneous Provisions) Act1965 (NSW). Her Honour said at [48] and [70]:
While s 5R must be applied to determine whether a person has been guilty of contributory negligence, it says nothing about how, if that issue is determined by a finding adverse to a plaintiff, the relative culpability of the plaintiff and defendant are determined. That exercise is governed, prima facie, by s 138(3) and, arguably also by s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW) (the “1965 Act”) which deals with the apportionment of liability in cases of contributory negligence and, in particular, s 9(1)(b) which provides that “the damages recoverable in respect of the wrong are to be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”.
…
Turning to the apportionment issue, it is relevant to take in account in assessing the parties’ relative culpability both the appellant’s control of the site and implementation of the systems in which its employees as well as entrants were required to work as well as the fact that a driver is “in charge of a powerful vehicle [and has] obligations to exercise care for pedestrians in the position of the appellant”: Anikin v Sierra [2004] HCA 65; (2004) 79 ALJR 452 (at [46]) whereas the pedestrian’s conduct, although contributory negligent, does not endanger the driver of the vehicle or anybody else: Pennington v Norris [1956] HCA 26; (1956) 96 CLR 10 (at 16); Smith v Zhang [2012] NSWCA 142; (2012) 60 MVR 525 (at [13] – 16]) per McFarlan JA; (at [29] per Meagher JA (with whom Tobias AJA agreed).
Section 5B of the CLA has a precise equivalent in the ACT. It is s 43 of the CLW. The CLW does not, however, contain a like provision to s 5R.
The CLW does have an equivalent to s 9(1) of the Law Reform (Miscellaneous Provisions) Act1965 (NSW), although its words are not precisely the same. Section 102 of the CLW is as follows:
102 Apportionment of Liability – Contributory Negligence
(1)If a person (the claimant) suffers damage partly because of the claimant’s failure to take reasonable care (contributory negligence) and partly because of someone else’s wrong –
(a) a claim for the damage is not defeated because of the claimant’s contributory negligence; and
(b) the damages recoverable for the wrong are to be reduced to the extent the court deciding the claim considers just and equitable having regard to the claimant’s share in the responsibility for the damage.
(2)However, if the claimant suffered personal injury and the wrong was a breach of statutory duty, the damages recoverable by the claimant for the personal injury must not be reduced because of the claimant’s contributory negligence.
(3)If an Act or contract providing for the limitation of liability applies to the claim, the amount of damages awarded to the claimant because of subsection (1) must not exceed the maximum limit applying to the claim.
(4)This section does not defeat any defence arising under a contract.
(5)This section has effect subject to part 7.1 (Damages for personal injuries – exclusions and limitations).
The ACT Court of Appeal considered Chivas and Cosmidis in Steen v Senton [2015] ACTCA 57; 302 FLR 440 (‘Steen’), an appeal from the decision of the Master. The Court found, at [38]:
There is considerable force in the reasons of the majority in Chivas and Cosmidis, and they cannot be considered to be plainly wrong. Accordingly, there is no basis for this court to depart from the views of the majority.
The first thing to be observed about Steen is that the matter concerned an accident in NSW, so the laws of that State were applicable. This meant that the CLA applied, including of course, ss 5R and 5B.
The Court in Steen made it clear that it considered the decisions in Chivas and Cosmidis to arise from both sections 5B and 5R. The Court did not state, or even suggest, that the same result would have been reached had the relevant accident occurred in the ACT. In my view, and consistent with the approach of McColl JA in Cosmidis, the most important statutory influence in the ACT is that provided by s 102 of the CLW. The reference in subsection (b) to a “just and equitable” result requires the traditional approach, as stated in Pennington, to be applied in the ACT. I would have reached a different result if there was an equivalent to s 5R in the CLW. I do not see that s 42 alone creates the need for a change in approach. I also do not think that the Basten JA necessarily states that s 5B, without s 5R, would have resulted in the same conclusion.
The next step, had I found in favour of the plaintiff, would have been to assess the degree of contributory negligence. It is necessary to first look at the acts of negligence of each party. For this purpose, I am assuming the breach of duty by the defendant is constituted by her failure to look back to the road ahead of her at an earlier point in time. This is essentially a failure to keep a proper lookout.
The acts of negligence on the part of the plaintiff were far more extensive. They include a general failure to keep a proper lookout in approaching the roadway, running across the road, looking to the left and not to the right and not seeing a vehicle that was very visible and could have been avoided by simply not entering the roadway.
In my view, his contributory negligence is extensive. Adopting the Pennington approach, I think that contributory negligence should be 75%.
Quantum
It is not necessary for me to assess quantum but I will do so in case my conclusions on liability are wrong. I will, however, do so fairly briefly.
A number of the heads of damages were agreed. There was no agreement on general damages, economic loss and some aspects of medical care.
The plaintiff submitted that general damages should be assessed at $500,000. The defendant suggested $375,000. My initial impression was that this was a reasonable assessment. The defendant pointed out, however, that to date the largest award of general damages in the ACT has been $375,000. The defendant accepted that, if heard in NSW, an award of $500,000 would have been unremarkable. However, learned Senior Counsel for the defendant cautioned me against awarding damages as if I was in NSW. He emphasised that damages assessed in the ACT are normally comparatively lower.
The award of $375,000 was made by Burns J in Hulanicki v Walton [2014] ACTSC 17 (‘Hulanicki’). There was an appeal brought by the plaintiff but it did not attack the award of general damages (Hulanicki v Walton [2015] ACTCA 14). The plaintiff in Hulanicki was also a young person when she was injured in a motor vehicle accident. She also suffered serious injuries including brain damage. However, she retained the capacity to walk and to work, albeit at a lower level of employment then she would otherwise have enjoyed. I do not wish to enter into a macabre comparison of injuries. Suffice to say the plaintiff in the present case is more seriously injured than the plaintiff in Hulanicki. In addition, the decision in Hulanicki was in March 2014, more than four years ago.
I think the defendant’s observations concerning levels of damages in the ACT are well made and must be taken into account. At the same time, every case is different and the subjective factors of each plaintiff must be considered.
I have described above some of the observations I made of the plaintiff when I saw him in Sydney. His injuries could of course be ‘worse’. He could have had, for example, no movement in his left arm. He could be in a vegetative state.
No matter how much worse his injuries could be, the fact remains that since the age of 15 the plaintiff’s life has been completely overwhelmed by his injuries. The sense of humour that he maintains is the only element of a ‘normal existence’ that can be identified. He is significantly cognitively impaired, when not in bed his movement is restricted to a wheelchair (to which his legs are bound), he cannot even move freely about a bed, he needs to be moved by two persons, he is incontinent both of urine and faeces and his speech is hesitant and uncertain. There is very little prospect of improvement other than perhaps some assistance from physiotherapy and speech therapy. The plaintiff has lost a good deal of his life expectancy. His remaining 33 years will be plagued by the disability which he now suffers.
Taking all of the above into account, I think general damages should be assessed at $500,000. Interest on this amount is $45,000.
Turning to economic loss, the first area of dispute was the length of time for which economic loss should be calculated.
The defendant submitted that future economic loss could not be allowed beyond 33 years (the plaintiff’s life expectancy). It is not clear whether the plaintiff has claimed future economic loss to age 65 or for 33 years. Whatever the case, I am of the view that the plaintiff is entitled to economic loss to age 65, that is another 41 years.
The role of the court is to place the plaintiff in the position he would have been but for the accident. Subject to the normal vicissitudes of life, the plaintiff would, but for the accident, have worked to age 65. His shortened life expectancy is entirely caused by the accident. In this circumstance, I am of the view that economic loss should be calculated to age 65. Had the reason for the plaintiff’s truncated life expectancy been due to a cause other than the accident, the position would have been different.
In Skelton v Collins (1966) 115 CLR 94 (‘Skelton’), Windeyer J said at [6] – [7]:
The one principle that is absolutely firm, and which must control all else, is that damages for the consequences of mere negligence are compensatory. They are not punitive. They are given to compensate the injured person for what he has suffered and will suffer in mind, body or estate.
We should not, I think, follow the English decisions in which in assessing loss of earnings the “lost years” are not taken into account.
According to the author of Assessment of Damages for Personal Injury and Death: General Principles, although Skelton allows for the awarding of earnings during the lost years, there should also be a deduction for the expenses that would have been incurred in creating the income. At [5.4.2], the author notes:
The true measure of the loss was held to be the amount of future earnings less probable living expenses necessary to enable the earning of future royalties.
In this case, that would probably be confined to living expenses. Neither party addressed me on what these expenses might be. I think an appropriate way of proceeding is to increase the vicissitudes from 15% to 30%.
The next area of dispute is the amount of the weekly loss. The plaintiff submitted it should be $1,300 per week, being net average weekly earnings in the ACT. The defendant submitted that past economic loss should be assessed at $450 per week and future economic loss at $650 per week. Both parties agreed that economic loss should start from age 18.
The defendant’s submissions were based on the unlikelihood that the plaintiff would have ever earned the average weekly earnings. He left school very early, he had no usable skills and there was a good prospect that he might follow the path of his two friends, ultimately spending time in prison. He had certainly made a good start in that direction.
The plaintiff pointed to Mr Winters now earning $1,250 per week as an indication that the plaintiff might have achieved a similar status. The $1,250 per week is before tax and therefore below average weekly earnings.
The plaintiff also submitted that I could derive some support from his current reputation as an honest and helpful man to support the likelihood that he would have ultimately come to live a more productive life. I do not think I can make the connection to a sufficient degree to enable me to reach the conclusion sought by the plaintiff.
I do however accept that the plaintiff, sooner or later, would have worked and possibly even for long periods at a time. My approach to economic loss would have been to allow $500 per week for the past and $800 per week for the future.
There have been 481 weeks since the accident so that past economic loss is $240,500. Interest at 9% for 6.4 years is $138,528.
Lost superannuation benefits at 11% are $26,455.
The plaintiff is now 24 years of age. $800 per week on the 3% tables, less 30% for vicissitudes, for 41 years produces a loss of $694,344. Lost superannuation benefits at 13% are $90,265.
The next area of dispute concerns a one-off payment of $10,500, based on Exhibit L. The claim relates to physiotherapy and hydrotherapy. The defendant’s objection seems to be derived from the plaintiff stating he did not like physiotherapy. That may well be the case but if the need has been established I certainly could not say that the plaintiff will not have the treatment. He also did not say anything about hydrotherapy. I will, however, change the figure to $10,200 because that is what is stated in Exhibit L.
The last area of contention relates to the sum of future medical treatment costs, and in particular the need for continuing speech therapy. The plaintiff has sought the costs over five years. The defendant submitted that one year would be sufficient because the therapy was intense and most progress would have already been made. I think the evidence is to the contrary. The plaintiff’s nursing manager said that he was benefiting greatly from speech therapy. I think the full amount should be allowed, taking into account that speech therapy is likely to be needed at different times over the remainder of the plaintiff’s life.
On the 3% tables, $350 per week for five years is $84,910. To this should be added the $71,500 for personal training, making a total of $156,410. I have not allowed any amount for the medical attendances which have been and likely to always be bulk billed.
A summary of the damages that I would have awarded is:
| Head of Damage | Damages |
| General Damages | $500,000 |
| Interest on General Damages | $45,000 |
| Out-of-pocket expenses (agreed) | $1,657,775 |
| Future medical treatment costs | $156,410 |
| Past economic loss | $240,500 |
| Interest of past economic loss | $138,528 |
| Past loss of superannuation | $26,455 |
| Interest on past loss of superannuation | $2,381 |
| Future economic loss | $694,344 |
| Future loss of superannuation | $90,265 |
| Future care (agreed) | $4,932,000 |
| One-off payment for physiotherapy and hydrotherapy | $10,200 |
| Future accommodation (agreed) | $377,300 |
| Total | $8,871,158 |
The above total would have been reduced for contributory negligence. Funds management would be added.
Final orders
I make the following order:
(i)Judgment for the defendant.
(ii)The plaintiff is to pay the defendant’s costs of the proceedings.
I will hear the parties on any alternative costs order.
| I certify that the preceding one hundred and thirty-one [131] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 14 June 2018 |
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