Leif Quinton Cruickshank v Daniela Radojicic

[2015] NSWDC 312

District Court

New South Wales

Medium Neutral Citation:	Leif Quinton Cruickshank v Daniela Radojicic [2015] NSWDC 312
Hearing dates:	1, 2 and 3 December 2015
Decision date:	17 December 2015
Jurisdiction:	Civil
Before:	Sidis ADCJ
Decision:	1.   Verdict and judgment for the plaintiff in the sum of $905,773. 2.   The defendant is to pay the plaintiff’s costs on an ordinary basis up to and including 11am on 17 October 2014 and on an indemnity basis thereafter. 3.   The exhibits will be retained for 28 days. 4.   My reasons are published.
Catchwords:	Personal injury; motor vehicle accident; skateboard rider; contributory negligence; apportionment of liability; assessment of damages.
Legislation Cited:	Civil Liability Act 2002; Motor Accidents Compensation Act 1999; Law Reform (Miscellaneous Provisions) Act 1965
Cases Cited:	Pennington v Norris [1956] HCA 26 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 T and X Company Pty Ltd v Chivas [2014] NSWCA 235 Talbot-Butt v Holloway (1990) 12 MVR 70 Solomons v Pallier [2015] NSWCA 266 White v Benjamin [2015] NSWCA 75.
Category:	Principal judgment
Parties:	Leif Quinton Cruickshank (Plaintiff) Daniela Radojicic (Defendant)
Representation:	Counsel: Mr Campbell SC with Mr Longhurst (Plaintiff) Mr Kelleher (Defendant)   Solicitors: Russell McLelland Brown Lawyers (Plaintiff) Hall & Wilcox Lawyers (Defendant)
File Number(s):	2012/336290
Publication restriction:	None

Judgment

1. The plaintiff claimed compensation for injuries he suffered in a motor vehicle accident on 16 August 2010. Breach of the duty of care, although contested in the defence, was admitted at the outset of the hearing. The issues remaining involved the extent of the plaintiff’s contributory negligence and the appropriate level at which to assess his damages.

The accident

2. The plaintiff’s injuries occurred when, riding a skateboard, he collided with the car driven by the defendant. The collision occurred at 7.45 pm on Mercury Street, Wollongong on 16 August 2010. The part of Mercury Street that was relevant to the accident was a downhill section of about 80 metres to the north of the roundabout at its intersection with New Dapto and Crown Streets. Mercury Street intersected with Sperry Street about 60 metres north west of the roundabout.

3. Dr George Rechnitzer, consulting engineer, described the physical properties of the road as follows:

Travelling north from the roundabout, Mercury Street is initially a divided road with two lanes travelling north and a wide single lane southbound (for distance of approximately 80m). A centre concrete median divides the two directions of travel and runs approximately 80m from a splitter island immediately north of the roundabout to a spot just south of the point of impact (POI). Past the end of the concrete median travelling north, Mercury Street continues as a two way road, with a north bound and south bound lane divided by double white lines.

At the collision location, Mercury Street is approximately 13.0m wide, with the two northbound lanes each approximately 3.0m wide, the concrete median approximately 1.0m, and the southbound lane approximately 6.0m wide.

4. The plaintiff’s evidence of the factual circumstances in which he collided with the defendant’s car was unchallenged by evidence of the defendant, who was not called.

5. At the time of the accident the plaintiff lived in Crown Street. His sister lived in Bligh Street, a road that intersected with Mercury Street, on the plaintiff’s estimate, about 400 to 500 metres from the roundabout. His intention on the evening of 16 August 2010 was to travel to his sister’s home. He adopted his usual practice of travelling on his skateboard on the footpath of Crown Street, dismounting and walking in a section of Crown Street, near the Wollongong Hospital car park, where he considered it too dangerous to continue on his skateboard.

6. He crossed Crown Street from east to west at a point to the south of the roundabout. He waited for the defendant’s car to travel through the roundabout before he remounted his skateboard at a small ramp providing entry to the road at a broken white line.

7. The defendant’s car was in the right hand lane next to the median strip in Mercury Street after it left the roundabout. The plaintiff said he travelled, as was his usual practice, close to the gutter. At a point half way between the roundabout and the Sperry Street intersection, the defendant, without indicating, drove the car into the left lane, slowed and applied her brakes.

8. The plaintiff was unsure of the defendant’s intentions in moving to the left. He initially thought that she was turning into Sperry Street and he moved into the right hand lane to travel around her car. When she continued beyond the intersection, he thought she intended to park in the space available on the western kerb of Mercury Street. At a point north of Sperry Street and at the end of the median strip, the defendant, again without indicating, turned the car in front of the plaintiff in order to perform a U-turn. The plaintiff estimated that the defendant’s car was 2.25 metres away from him when she commenced the turn.

9. The plaintiff said the defendant’s car continued to travel slowly and was at a virtual right angle to him when he collided with it. He was unable to move further to his right to avoid a collision because of the presence of the median strip and because of the presence of a sign at the end of the median. He decided that his best alternative was to attempt to jump over the car. He struck his right wrist on the bonnet and his knees on the front quarter panel of the car. He then rolled over the car and travelled along the road, coming to rest near the driveway of a unit building about 9.5 metres from the point of impact.

10. Details of the path of travel of the plaintiff and the defendant’s car were shown in a diagram prepared by Dr Rechnitzer (Exhibit A.103, figure 6), except that the plaintiff marked on that page the point at which he started to ride the skateboard in Mercury Street. The other mark on that page was made by Mr Hall, consulting engineer, to indicate the point at which he was instructed that the plaintiff entered Mercury Street.

Contributory negligence

11. As already noted the defendant did not give evidence. I thus accepted the plaintiff’s evidence that she failed to indicate her intention to make a U-turn and, in the absence of evidence to the contrary, I inferred that she did not check her rear vision or wing mirrors before commencing the turn.

12. The defendant contended that the plaintiff’s contributory negligence arose out of his decision to ride his skateboard on a busy road after dark.

13. He was asked about the alternative of travelling on the footpath. This alternative was not available for the full length of the western side of Mercury Street but the footpath on the eastern side was fully constructed. The plaintiff’s response was that it was more dangerous to ride on this footpath because it had a blind corner and was well used by pedestrians. The plaintiff agreed that he could have walked to his sister’s home. He said he never walked between the two properties. He used his skateboard as his means of transport because he did not own a car or hold a driver’s licence.

14. The plaintiff agreed that he was very familiar with the area and that Mercury Street was a reasonably busy road, that there were driveways on each side and that there was a reasonable amount of pedestrian traffic. He agreed that the first part of his journey was on a hill that levelled out to a point at the end of the median.

15. The plaintiff said the distance between him and the defendant’s car was 10 to 20 metres when it slowed on approach to the Sperry Street intersection, diminishing to 10 metres. He initially claimed that his speed was 20 to 30 kph. Having been taken to Dr Rechnitzer’s report where it was recorded that the plaintiff told him his speed was between 30 and 40 kph, the plaintiff said he probably exaggerated and said he doubted that he could achieve this speed on this part of the road. He ultimately conceded that his speed could have been just over 30 kph.

16. The plaintiff was questioned concerning his ability to stop in an emergency when travelling at such speeds. He claimed that he was able to do so and described a number of methods available to bring a skateboard to a halt within 1.5 to 2 metres.

17. The plaintiff had a blood test at Wollongong Hospital at 8:45 pm and it returned a blood alcohol reading of 0.079 g/100ml. Dr Perl, unchallenged, reported that it was likely that the plaintiff’s blood alcohol reading at the time of the accident at 7:45 pm was 0.094 g/100ml. This left open the question of whether the plaintiff drank more than the three longnecks of VB that he claimed to have consumed on his way home from work between 1:45 and 3:45 pm on the afternoon of 16 August 2010. Regardless of the quantity consumed, Dr Perl’s opinion was that at 0.094 g/100 ml the plaintiff’s reaction skills and perceptions would be impaired as would be his capacity to regulate risk taking behaviour. The plaintiff denied that he was intoxicated in any way at the time of the accident. He was somewhat cavalier in his evidence of his capacity to continue to ride his skateboard after consuming considerable quantities of alcohol.

18. The plaintiff was unaware that riding a skateboard after dark breached Regulation 240(2)(b) of the Road Rules 2014. He agreed that travelling in darkness involved additional risk in an already risky activity but denied that it was more dangerous to travel on his skateboard at night. He said it was less dangerous because there were fewer people about. He agreed that he had no lights on his skateboard and that at night it was more difficult to see potholes and more difficult for car drivers to see him. He was, however, wearing a high visibility shirt and shoes with reflective strips. The extent to which this clothing would have increased his visibility was not made known. Nor was there evidence of the efficacy of the street lighting in the area of Mercury Street where the accident occurred.

19. Having been presented with a summary of the risks involved the plaintiff said:

I could have walked down there but I had my skateboard with me. I skate down that hill every day for I don’t know how long I did, you know what I mean, like I don’t see –

…

Like, I don’t know mate. It was the only one car on the road for that distance and I decided to go down and didn’t expect the car to turn in front of me. (Transcript 102.38)

Expert Opinion

20. Dr Rechnitzer and Mr Hall gave their evidence concurrently. The essential differences contained in their reports related to the plaintiff’s speed and the opportunity available to him to take evasive action.

21. On the issue of speed, Dr Rechnitzer, for the reasons stated in his report, estimated the plaintiff’s speed at the lower end of the 30 – 40 kph range. He also assumed that the plaintiff took some steps to slow his speed.

22. Mr Hall had been misinformed as to a number of features of the accident, including the path of travel of the defendant’s car, the point at which it turned and the point of impact. After considering the correct path of the defendant’s car, the plaintiff’s evidence of the point at which he entered Mercury Street and the point of impact, he moderated his original assessment of speed of 40 to 50 kph. He agreed that the range was between 30 – 40 kph, most likely in the middle of that range.

23. On the basis of evidence that established that the point of impact was about 5 metres north of the point where the median strip terminated, both experts agreed that the plaintiff had no opportunity to cross to the opposite side of the road. They agreed that his only option was to come to a halt.

24. They agreed that 3.3 seconds elapsed from the time the defendant commenced the U-turn to impact. They agreed that a 1.5 second perception/reaction time was appropriate.

25. Having reached agreement on the range of likely speed at which the plaintiff travelled, the experts agreed that on a skateboard without brakes a collision was unavoidable.

26. Dr Rechnitzer doubted, given the unexpected move of the defendant’s vehicle across the plaintiff’s path, that there was sufficient distance for any vehicle, whether a motor vehicle or bicycle, assisted by brakes, to avoid a collision.

27. Mr Hall disagreed. His disagreement was based on the assumption that the defendant was exercising care in making the U-turn so that she drove slowly into the turn. In his opinion this would allow sufficient opportunity for a person following on a motor vehicle or bicycle to apply the brakes and stop. This disagreement was not relevant to the determination of the issue of contributory negligence but it left open to speculation the extent to which a driver who turned without indicating across double white lines and, probably, without checking for others on the road, exercised care in making the U-turn.

Legal principles

28. In the course of submissions there was much discussion concerning the somewhat unsettled state of appellate authority on the interrelationship between ss 5B and 5R of the Civil Liability Act 2002, s 138(3) of the Motor Accidents Compensation Act 1999, s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965 and High Court authority, stemming from decisions such as Pennington v Norris [1956] HCA 26; 96 CLR 10 and Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492.

29. T and X Company Pty Ltd v Chivas [2014] NSWCA 235 Basten JA, with whom Barrett JA agreed, Beazley P dissenting, raised the issue of whether the approach taken in Pennington, Podrebersek and Talbot-Butt v Holloway (1990) 12 MVR 70, continued to operate in the face of the enactment of ss 5B and 5R of the Civil Liability Act. Basten JA said at [54] that those provisions resulted in a “significant, if subtle, change of emphasis” from that applied in past cases of comparing the relative capacity of the co-contributors to accidents to cause damage. The shift to which he referred was to require each party to take an equally responsible level of care for his or own safety. Justice Basten also questioned at [56] whether, in applying s 9(1)(b) of the Law Reform (Miscellaneous Provisions) Act, “the claimant’s share in the responsibility for the damage” was a mandatory, but not the only, factor in considering a just and equitable apportionment. He said at [57]:

The weighty factor in assessing relative responsibility for the accident was the unpredictable step taken by the deceased in seeking to cross the road against a red pedestrian light and in the face of oncoming traffic.

30. The Chivas decision was followed by a number of others in which these issues have been debated and clarified. Of those, the reasons of Meagher J, Macfarlane and Simpson JJA agreeing, in Solomons v Pallier [2015] NSWCA 266, a case involving a motor vehicle accident to which s 138(3) of the Motor Accidents Compensation Act applied, were particularly helpful. He said:

The exercise of apportionment directs attention to the culpability or degree of departure of each party from the appropriate standard of care and the relative importance of their respective careless acts in causing the damage suffered. [85]

31. He also clarified at [91] the situation concerning a plaintiff whose negligence could be classified as “passive” in the sense that the person placed himself or herself in a position of danger in some manner that demonstrated a failure to take care for his or her own safety to the point where it could be concluded that the plaintiff accepted responsibility for a foreseeable, not insignificant risk.

Findings

32. Each party conceded certain findings of fact. The defendant conceded:

1. The plaintiff entered the road when the defendant’s car was five metres beyond the roundabout.

2. The defendant initially travelled about 15 kph faster than the plaintiff and slowed on approach to the intersection with Sperry Street.

3. The defendant braked and slowed further without indicating her intentions.

4. The defendant started the U-turn when her car was 2.25 metres from the plaintiff.

5. The plaintiff at that point travelled at a speed of 30 – 40 kph.

6. The defendant turned at low speed.

7. The defendant’s car was virtually perpendicular to the plaintiff at the point of impact.

8. The plaintiff was thrown 9.5 metres after impact.

33. The plaintiff conceded:

1. The plaintiff was in breach of Regulation 240 in riding his skateboard on Mercury Street at night.

2. The plaintiff was, perhaps, travelling too fast.

34. To these findings of fact, I add that the plaintiff’s blood alcohol content at the time of the accident was 0.094 g/100ml, a level at which his capacity for judgment was impaired and his propensity to indulge in risk taking behaviour was increased.

Apportionment

35. The defendant argued for an apportionment of liability on an equal basis. The plaintiff suggested a reduction in the plaintiff’s damages of 20%.

36. Although the plaintiff accepted that a finding of contributory negligence should be made against him, it remained necessary to identify with some precision the relevant risk. My concern in this case was that the defendant’s position was that the plaintiff’s causal contribution to the accident was simply that he was on Mercury Street in the dark, so that in effect he was in the wrong place at the wrong time, that being the time when the defendant drove her car in an overwhelmingly negligent manner.

37. However, I decided that in this case the relevant risk was that of travelling on a skateboard on a relatively busy road at night, without protective equipment or lighting. I accepted the defendant’s submission that the risk was recognised as sufficiently significant to warrant prohibition of skateboard riding at night through Regulation 240 of the Road Rules. In my view, there was a risk of harm that a reasonable person in the plaintiff’s position would recognise as foreseeable and significant and one against which precautions should be taken. There was a simple, convenient, alternative available to the plaintiff, namely, to walk on the constructed footpath on the eastern side of Mercury Street.

38. The plaintiff’s cavalier attitude to his capacity to ride his skateboard after consuming significant quantities of alcohol indicated that he had little appreciation of the scientific evidence of the impairing effects of alcohol. Nevertheless, I accepted the plaintiff’s contention that there was no evidence that the plaintiff’s level of intoxication by alcohol contributed to the accident.

39. In summary, I find that in riding his skateboard in the dark in Mercury Street the plaintiff was in breach of the law, unlit and wearing no protective equipment so that he was fully exposed to injury in the events that occurred. In disregarding the risks involved in this activity, he was guilty of contributory negligence.

40. The defendant’s negligence was serious. She failed to indicate her intentions when she moved into the left hand lane of Mercury Street. The plaintiff was forced out of his preferred position of being close to the gutter to move around her. Her unpredictable attempt to make a U-turn across double white lanes, without indicating and across the plaintiff’s path of travel at a distance of 2.25 metres from him was, clearly, the “weighty factor” in the accident. At the same time she was driving a motor vehicle that had the greater propensity to cause harm.

41. I concluded that liability in respect of this accident should be apportioned at 80% to the defendant and 20% to the plaintiff.

DAMAGES

42. The plaintiff claimed compensation for non-economic loss, loss of income earning capacity, attendant care and medical expenses.

43. The plaintiff was 27 years old at the time of the accident and almost 33 at the date of the hearing. He was right hand dominant. His pre-accident history was one of a dysfunctional family background.

44. He did not return to school after the first day of Year 10 so that he never received a School Certificate. Since leaving school, he obtained licences to drive a forklift and bobcat, the latter being no longer current at the time of hearing. He undertook a filmmaking course and partially completed a course in personal training.

42. At the same time as leaving school, the plaintiff left home because of friction within his family concerning the use of drugs and alcohol. He was homeless for six months, sleeping in toilets at the beach and spending less than a year living in his sister’s garage before moving with a friend to a house in Crown Street. At the time of the accident he lived in the same house alone, with the exception of his dog.

43. His activities before the accident included surfing, skateboarding, playing his guitar and exercising his dog. He said these were all daily activities. He also played pub league soccer on an intermittent basis.

44. The plaintiff had some pre-accident medical history. In 1989 he fractured his right wrist. He said he fully recovered from this injury within six months. He underwent surgery for the removal of a left sided temporal cerebral cyst in 2006. The presence of the cyst was discovered when he was unable to retain information while attempting a course to complete Year 10 of his education. The plaintiff said his memory improved after surgery but he remained with some minor difficulties with short term memory.

45. The plaintiff started skateboarding at the age of 3 or 4 years and said he used skateboards regularly from that time. While skateboarding in 2004, at the age of 21, he was struck by a bus and suffered minor injuries. Six months later he sprained an ankle following a mishap while riding the skateboard.

46. At the time of the accident, the plaintiff used his skateboard as a means of transport, in the absence of ownership of a car.

47. After he came to rest following the collision with the defendant’s car, the plaintiff received assistance from passing pedestrians before an ambulance arrived and transported him to Wollongong Hospital. X-rays revealed that he suffered serious orthopaedic injuries as a result of the collision. He fractured his right wrist, the left patella and the right patella. All fractures were complex, requiring surgical reduction and wiring, procedures that were undertaken at Wollongong Hospital on 18 August 2010.

48. The plaintiff said he was in agonising pain from his wrist and legs. He claimed that he resisted the use of narcotic medication because of his experience of the effect that it had on members of his family. However, the pain he suffered was at such levels that narcotic medication was necessary for relief.

49. After surgery to fix the fractures, he woke and moved his legs. This caused the fixing wires in his right knee to protrude. Splints were placed on both legs to immobilise them and prevent a recurrence.

50. The plaintiff said he was uncomfortable in hospital. The drugs provided left him unable to eat and he was discharged into the care of his sister. She lived in a third storey apartment to which the plaintiff was transported on a board.

51. His right wrist remained in a plaster cast for six weeks. During that period the plaintiff suffered problems with protruding wires and infection. The wires in the wrist were removed at the same time as the cast on 6 October 2010.

52. The splints on the plaintiff’s legs severely restricted his mobility. He was unable to use crutches because both legs were affected. He complained of constant pain which was worse with activity. He abandoned pain killing medication one month after discharge from hospital because of ongoing stomach and digestive problems. I found no record of the date on which the splints were removed. According to Dr Barold, they were removed about three months after the accident following a fall at his sister’s home.

53. The plaintiff’s activities during this period were limited to watching television and movies and listening to music. He was unable to play his guitar until December. Aside from attending the fracture clinic and medical appointments, he first left the building in which his sister lived on his birthday on 17 December 2010.

54. The only other treatment at this time appeared to be physiotherapy in the early part of 2011.

55. In the New Year he moved into his stepfather’s home at Campbelltown for five to six weeks. He left because of friction between his stepfather and his partner and returned to his sister’s home for about two weeks.

56. He lost the tenancy of the house he rented at the time of the accident because he was unable to pay the rent. He also claimed that he lost most of the personal property he left in the house. There followed a period described by the plaintiff as “lounge hopping” when he stayed with friends wherever he could, doing his own washing and eating junk food. He received no medical treatment during this period. In about October 2010 he secured permanent accommodation, sharing with a friend. This arrangement lasted for about a year when the plaintiff resumed his practice of lounge hopping before moving in with his girlfriend for about 18 months.

57. The wiring was removed from his knees in a day procedure under anaesthetic in October 2011. Following this procedure he was immobilised for another week.

58. In February 2012 the plaintiff returned to his pre-injury employment for a short period. The work caused throbbing pain in his knees, disturbing his sleep nightly so that several times each night he rose and walked around the house.

Non-economic loss

62. The plaintiff described his current problems in the following terms. He said his knees gave way regularly. This affected both knees without warning after activity or sitting for lengthy periods when his legs become numb. Every now and then he has a “good one”. He described a good one as:

Fall down the stairs or something like that. I’ve got stitches a little while back from falling down me stairs out the front of me house. (Transcript 66.45)

63. He continued to refuse to take pain killing medication. He claimed that after leaving the hospital he developed a dependence on Endone, which he overcame, and he preferred to self treat with cannabis. He was aware that use of this substance was illegal but said he could manage it without addiction.

64. The plaintiff rarely consulted doctors because the only treatment offered to him was medication. He said his family members all have drug dependencies and he did not want to join them. He found physiotherapy useful in managing his pain but he could no longer afford to pay for it. If funded, he would consider hydrotherapy.

65. He attended the Anytime Fitness gymnasium regularly until the end of 2013 where he exercised with weights when seated, and used equipment for exercises designed to condition his legs. He no longer surfs. He uses his skateboard only occasionally because it causes pain.

66. He continued to practise on his guitar daily for 30 to 60 minutes, depending on the pain level in his right wrist, and was a member of a punk rock band Alison’s Disease. He said this type of music required vigorous movement and repetitive jerky movements of his right hand. The band practised fortnightly and played at gigs every two to three weeks, although there had been no gigs recently. He received little by way of cash remuneration for these performances.

67. After the accident he obtained his driving licence that has been suspended for three months for speeding, six months for drink driving (although it took nine months to recover it). The plaintiff said it was about to be suspended again for drink driving.

68. He was homeless once more at the time of the hearing. His relationship with his girlfriend “just went to crap” (Transcript 70.28) about four months ago because he was always depressed and unhappy. He claimed that this was because he was unable to work and provide while his girlfriend had responsible employment managing a retail store.

69. He was living with his dog in a bus shelter at the beach. He said he does little during the day. He walks with the dog, goes to places occupied by his friends and, if it rains, he stays in the bus shelter.

Medical opinion

70. Dr Yiu-Key Ho performed the surgery to fix the plaintiff’s right wrist and knees on 18 August 2010. He reported on 24 July 2012 that the repair of the left patella fracture was less complicated than on the right where the plaintiff suffered a significant fracture with comminution. Union on the right was delayed so that implants fixing the patellas were left in place until October 2011.

71. After examining the plaintiff in July 2012, Dr Ho noted that there was ongoing swelling and stiffness in the right wrist. The prognosis was poor for both knees where there were permanent residual problems with pain, weakness, stiffness, loss of full function and traumatic arthritis, worse on the right side which was particularly affected. There was permanent scarring in both knees. Treatment in the future was likely to involve arthroscopy and, in the plaintiff’s later years, total knee replacements.

72. Dr Ho examined the plaintiff again in June 2013 and recorded continuing complaints of pain, discomfort and restriction in the knees and continued swelling and stiffness in the right wrist. He noted that the plaintiff was exercising to maintain muscle strength and mobility. He said the weakness in the knees was a consequence of the injury.

73. Dr Barold examined the plaintiff in November 2013. He described him as a “fiercely independent individual”, who performed his own cooking and cleaning because he thought it was better to keep moving. Dr Barold said although the plaintiff received appropriate treatment, he continued with significant disability, impairment, and diminished functionality and work capacity. He considered that there would be no further improvement in the right wrist and that the condition of both knees would worsen with post traumatic arthropathy.

74. Dr Barold said the plaintiff’s prognosis was guarded to poor.

75. Dr Barold’s treatment recommendations of gymnasium work, hydrotherapy, physiotherapy and massage were directed at preventing further deterioration in the plaintiff’s functional capacity. He provided pricing for these treatments as well as for potential further surgery with ancillary costs.

76. Dr Sekel examined the plaintiff in August 2014. Based on information supplied to him by the plaintiff, he concluded that there were minimal ongoing symptoms and loss of function affecting the right wrist. Dr Sekel did not provide his own assessment of any ongoing problems in the plaintiff’s knees.

77. Dr Rosenthal was the assessor appointed by the Motor Accidents Authority to examine the plaintiff in February 2015. He reported that there was no evidence of impairment resulting from the plaintiff’s pre-accident injuries. He noted that his clinical findings differed from those of Dr Sekel. Among those findings were scars over knees, retropatellar crepitus and minor tenderness in the knees. There were slight differences in thigh and calf measurements and restrictions on range of movements, with particular note of the reduced capacity to squat. Dr Rosenthal noted that the plaintiff displayed no signs of embellishment or exaggeration. He accepted that the injuries to the plaintiff’s wrist and both knees resulted in permanent impairment.

78. Dr Barold in a report dated 2 March 2015 provided his comment on Dr Sekel’s report. He strongly disagreed with his opinion and was critical of his use of the plaintiff’s subjective reasoning that, according to Dr Barold, produced a distorted picture of his disabilities. He noted that Dr Sekel provided no opinion on the plaintiff’s prognosis.

79. Dr Nade, orthopaedic surgeon, examined the plaintiff in July 2012 at the request of the defendant. No report from Dr Nade was tendered in evidence.

Assessment

80. Having heard the plaintiff’s evidence and having read the medical evidence, including the opinions of his treating surgeon Dr Ho and the independent assessment of the MAS Assessor, Dr Rosenthal, I rejected Dr Sekel’s superficial and unhelpful report. He provided no diagnosis or opinion on the plaintiff’s current condition, providing instead, under that heading, a description of the accident and speculation concerning the speed at which the plaintiff travelled at the time of impact. He concluded by noting the plaintiff’s reluctance to seek medical attention. He offered no opinion concerning the treatment, if any, he considered might be appropriate or its cost.

81. Dr Ho, Dr Barold and Dr Rosenthal were all of the opinion that the plaintiff suffered from permanent residual disabilities in his wrist and knees as well as scarring. They agreed that the swelling and stiffness in the right wrist was permanent. Dr Ho and Dr Barold agreed that the symptoms of pain, weakness, stiffness and loss of function in the knees would worsen as the traumatic arthritis, already present, progressed.

82. The plaintiff’s senior counsel urged me to consider the effect of the aftermath of his injuries on the plaintiff’s psychological well being in the light of evidence of the breakdown of his relationship and his reaction to perceived discrimination while working with TNT. There was no medical opinion in evidence to support a finding that the plaintiff suffered psychological injury as a result of this accident.

83. Nevertheless, I acknowledge that the plaintiff displayed clear signs of distress at his post accident situation and I have taken this factor, his significant orthopaedic injuries and his prospects, at the age of 33 years, of life long disability and discomfort as a result of those injuries into account in assessing his non-economic loss at $200,000.

Income earning capacity

84. As already noted, the plaintiff did not complete his secondary education and he acquired only limited training or skills after leaving school and before the accident. After leaving school he worked in a number of positions, including that of a “roadie” in the entertainment business, interspersed with periods of unemployment. All of this was unskilled, heavy labouring work.

85. He claimed that he was virtually fully employed after leaving school but Centrelink documents suggested that there were extensive periods when he was in receipt of benefits. There were periods in 2006, 2007 and 2008, some of which were lengthy, when he received a Newstart allowance. The plaintiff said these payments were received when he worked on a casual basis as a roadie and that the benefits varied according to the amounts he earned from that work. He could not explain the absence of tax returns for the 2004 – 2009 tax years. He thought his income had been insufficient to require that he file returns.

86. He started work with Contractors United, a labour hire company, in December 2009 after a period of nine months during which he was in receipt of Centrelink benefits. He was initially employed to plant pine trees in a forest near Tumut, work that involved considerable physical effort on steep rocky ground. He then moved to work as a “skilled labourer” mainly water blasting to clean sewer tunnels in Manly. This involved leaving Wollongong, as a passenger in a car driven by a fellow employee, at 3 am to start work at Manly at 5 am. He worked in confined spaces from a deck, crouching and working on his knees for most of the day. Work finished at 1 pm, after which the plaintiff was driven back to his home in Wollongong by about 3.30 pm.

87. He worked five days a week, with the occasional Saturday. He was employed as a permanent casual on a 38 hour week. The plaintiff said it was likely that he was sick in the weeks where the records showed that he worked for fewer than 38 hours. Working in sewers, he said, resulted in regular illness and, as a casual, he received no sick pay.

88. Twelve weeks after the accident he began to receive Centrelink benefits because of his inability to work. He returned to work with Contractors United in February 2012, working in a larger, dry tunnel. He was required to carry heavy loads and crouch to perform this work. The plaintiff described the pain caused by this work as “excruciating” and he left after two months.

89. In July 2012 he obtained work through another labour hire company at the premises of TNT in Enfield loading boxes onto a conveyor belt in a six or seven hour shift. Again he was transported to work in a colleague’s car. After some months, he was transferred to packing trucks and then to forklift work. He regarded these moves as small promotions. The plaintiff agreed that he told Dr Sekel that he coped reasonably well with the loading of cartons weighing up to 25kgs.

90. It transpired that the plaintiff’s use of the words “reasonably well” meant that he managed the conveyor belt work with difficulty, modifying his work method to step to turn around rather than twisting. He said it increased the pain in his knees and his wrist. At the end of each shift he sat in the foyer of the premises to stretch and massage his legs before getting into the car for the return journey to Wollongong. That journey was bearable if there were no other passengers in the car and he was able to push his seat back. Otherwise, it caused him discomfort.

91. The plaintiff said he thought the forklift work would be ideal because he could sit through his shift. After sitting in the forklift for several hours, his right knee collapsed when he dismounted and he fell to the ground. He said this occurred on more than one occasion. On the last occasion, his supervisor refused his request that he be allowed to go home early and he spent the balance of the shift loading trucks. At this point he realised that he would not be able to do the job and he did not return. He left in February 2013 after working for two days on the forklift. He agreed that he left this work because he was upset at the supervisor’s treatment of him, feeling that he had been discriminated against.

92. He did not consider returning to work on the conveyor belt. He was offered some shifts but it appeared that by then he was required to drive himself to TNT’s premises. He had obtained a driving licence but it was suspended for the reasons already noted.

93. Since leaving TNT the plaintiff has found only a few short term jobs. He worked as a painter, finding it very difficult to climb ladders. Fencing work on uneven ground and requiring him to carry heavy loads caused his knees to give way, especially on windy days. He took a paving job because he needed money. He described this as the worst of the jobs he found and he left after only a couple of days.

94. The plaintiff said he gave up the painting work because his employer did not take him on as a subcontractor as promised. He said he would have continued with the work although it was hard because:

Well, I’ve got a son, mate, I’ve got to get money, you know what I mean. My knees are irrelevant at the end of the day when I’ve got to supply a kid with food. (Transcript 117.45)

95. The plaintiff partially completed a course in fitness training to become a personal trainer. He was unable to complete the practical part of the course that involved training with clients in exercises that involved impact. He has deferred completion of the course. He said he was hoping to complete it so that it would qualify him for entry to university to study in some other unspecified area.

96. He said he also applied for work in bars and kitchens but now realised that it would be too arduous. He was interviewed for a position in a call centre but received no offer of work after he completed a document containing a medical history.

97. He was unsure what the future held. He agreed that the loss of his driving licence was an impediment to finding employment. He thought it was possible that he might enrol in a university course to gain skills that would enable him to find sedentary work.

98. Dr Sekel noted the plaintiff’s statements that he could lift 25kg, work as a landscape labourer and successfully complete a personal training course. On this basis, he concluded that the plaintiff was fit for unrestricted hours on unrestricted duties in labour intensive activity, including that involved in his pre-injury employment.

99. In this respect, Dr Sekel was in the minority. In Dr Ho’s opinion, the plaintiff would not return to his pre-accident employment and he needed work that did not place strain on his legs. Dr Barold said he was unfit for his pre-accident work or any work involving the repetitive use or strain of his right hand, such as work involving a keyboard. He set out in his report a number of physical restrictions that limited the plaintiff’s options for employment. Dr Barold thought that work as a personal trainer was unsuitable. He recommended vocational training for work of a sedentary nature. As noted, the court was not provided with the benefit of Dr Nade’s report.

95. The plaintiff said he had no physical problems with any of the heavy labouring work he undertook to the time of the accident. It was clear that his most likely future circumstances, but for his injuries, were that he would continue to work as an unskilled, heavy labourer.

96. I accepted the majority medical opinion that the plaintiff was not fit and never will be fit to return to this work. Nor, realistically, was he physically capable of work as a personal trainer.

97. The level to which he was educated and his very limited skills offered little prospect of alternative employment in the absence of vocational training.

98. In assessing the plaintiff’s loss of income earning capacity, I have taken into account the following:

1. From when he left school to the date of the accident the plaintiff had an intermittent work history, aside from a period of about 8 months prior to the accident.

2. In this 8 month period, he demonstrated a capacity for rigorous full time work in difficult circumstances.

3. Contractors United employed the plaintiff as a permanent casual so that he was not paid sick leave or holiday pay.

104. It was inappropriate therefore to assess his income loss on the basis of a full 38 hour week. When working in the unskilled labour force the plaintiff faced prospects of further periods of unemployment or casual intermittent employment.

105. I therefore preferred the defendant’s approach of averaging his income over the period of his employment and adopted the figure proposed. I assessed the plaintiff’s income earning capacity at the time of the accident at $755 per week net. I increased that figure to $800 for the period of 165 weeks from October 2012 and further increased it to $850 for the future. This assessment resulted in figures of $58,135 and $132,000 for past income loss to which I added superannuation loss of $20,915.

106. The plaintiff claimed a residual income earning capacity of 33%. The defendant argued for 50%. Neither party provided evidence of vocational assessment of the work to which the plaintiff might be suited, if retrained, its availability in the Wollongong area and the income likely to be generated. White v Benjamin [2015] NSWCA 75 provided authority that it was for the plaintiff to adduce evidence of this nature. In its absence, I was required to do my best to assess compensation for future income loss.

107. I noted that the plaintiff made serious attempts to secure employment, although in inappropriate areas. His attempts to find work in more appropriate areas, such as call centres, have been unsuccessful, the suggestion being that his history of injury and disability placed him at a disadvantage. I also took account of Dr Barold’s description of his fiercely independent attitude and the plaintiff’s aspiration to gain entry to university for the purpose of retraining. These features suggested that, with appropriate vocational guidance, there were positive prospects that the plaintiff would be placed in suitable employment.

108. Notwithstanding these positive aspects of the evidence, the discomfort and pain from which the plaintiff will suffer as a result of his injuries and the fact of his disabilities themselves will continue to provide significant barriers to employment.

109. I assessed his residual income earning capacity at 40% and I allowed future income loss in the sum of $379,573 and superannuation of $41,753.

Domestic care

110. The plaintiff said that prior to the accident he managed the garden of the house in which he lived. He mowed the law, cared for fruit trees and a vegetable patch and his bonsai collection. He helped his elderly landlord with maintenance on the property with work such as roofing and fixing weatherboards. He undertook all of his own housework, cooking, washing and shopping.

111. After the accident and until the cast was removed from his wrist, the plaintiff could do nothing in the way of caring for himself. Care was provided by his family and friends and his ex-girlfriend assisted him with showering. By the time he moved to his stepfather’s premises in Campbelltown he was able to self shower with difficulty. His stepfather and partner provided all other necessary care.

112. By the time he moved back to his sister’s home in March 2011, he was able to do more. When lounge hopping, his laundry was done by friends and family and he lived on junk food. After moving in with friends he did his own housework. He said there was no-one else to do it for him.

113. The plaintiff said that, if he had a home, he would have difficulty with some aspects of care. He would struggle with a lawn mower and whipper snipper, heavy aspects of housework, hanging out washing and undertaking substantial shopping because pushing a trolley caused his knees to invert.

114. In the past he obtained clothes airers so that he avoided the need to lift clothing to hang it on a washing line. He agreed that he could make the same arrangement in the future and that he could order shopping on line for delivery. This, of course, would involve extra expense.

115. The plaintiff said that he would pay for assistance if he had the funds to do so.

116. Dr Sekel’s opinion that the plaintiff had no need for domestic assistance was based on his incorrect understanding that he had undertaken all of his normal housework from the time of his discharge from hospital.

117. Dr Barold estimated the plaintiff’s needs for attendant care at 7.5 hours per week, stating:

In conclusion, I am concerned that Mr Cruickshank’s determination to remain independent and physically active will aggravate and accelerate the development of post traumatic arthropathy in the injured body parts. (Exhibit D.28)

118. The plaintiff sought an allowance of 40 hours per week or about 6 hours per day for the period of 30 weeks from the date of the accident to the point where he left the care of his family and returned to an itinerant life style. The defendant contended that the plaintiff’s needs diminished during this 30 week period so the need should be averaged at 15 hours per week or 2.5 hours per day.

119. I accepted that during this period the plaintiff was virtually immobilised by the splints placed on his legs. According to Dr Barold, the splints were removed after three months. I considered six hours per day to be excessive during the period of immobility and the suggestion of 2.5 hours to be insufficient. I allowed for gratuitous care of 4 hours per day for 13 weeks and 2.5 hours for the remaining 17 weeks at the statutory rates resulting in compensation for past attendant care of $9,009 and $7,363 respectively.

120. Dr Barold made it clear that it would be to the plaintiff’s disadvantage to continue to maintain his current stoic determination to remain independent. Further, the medical experts agreed that the condition of his knees would deteriorate, generating an increasing need for assistance as he aged.

121. I accepted therefore that the injuries suffered by the plaintiff in this accident generated a need for 4 hours per week of attendant care. In the absence of family support on a gratuitous basis, it will have to be provided on a commercial basis. I allowed 4 hours per week at the agreed rate of $44 per hour resulting in an award for future attendant care needs of $174,046.

Out of pocket expenses

122. The parties agreed that out of pocket expenses to the date of the hearing were $872.

123. For the future, the defendant accepted claims for a gym program, hydrotherapy and vocational assessment in sums totalling $4,800. The defendant relied on evidence of minimal medical intervention to date to resist the remainder of the substantial claim for future treatment.

124. The plaintiff said he had not consulted doctors to date because the only treatment offered was medication for pain relief. He did state that the physiotherapy he received was useful and I concluded that he would make use of this treatment and most likely of massage therapy if funds were available. Accordingly, I allowed the sum of $15,000 for this purpose.

125. I was not persuaded that wrist replacement surgery would be required. I accepted the virtual inevitability of the need for bilateral knee replacements so that I allowed for surgery and associated expenses of medical practitioners, medication, radiology and the like, all deferred, in the sum of $50,000.

126. The total allowed for future medical expenses was $69,800.

ORDERS

127. Verdict and judgment for the plaintiff in the sum of $905,773 comprising:

Non-economic loss	$200,000
Income loss:
Past income	$190,135
Past superannuation	$20,915	$211,050
Future income	$379,573
Future superannuation	$41,753	$421,326
Attendant care:
Past	$16,372
Future	$174,046	$190,418
Out of pocket expenses:
Past	$872
Future	$69,800	$70,672
$1,093,466
Less 20%	$218,693
Plus interest	$31,000
Total	$905,773

128. The defendant is to pay the plaintiff’s costs on an ordinary basis up to and including 11am on 17 October 2014 and on an indemnity basis thereafter.

129. The exhibits will be retained for 28 days.

130. My reasons are published.

AMENDMENTS

131. 18 December 2015: paragraphs 127 and 128 and orders 1 and 2 of the Judgment were amended to reflect an award of interest and costs.

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Decision last updated: 21 December 2015