Luca v Zupanov
[2013] WADC 40
•22 MARCH 2013
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: LUCA -v- ZUPANOV [2013] WADC 40
CORAM: O'NEAL DCJ
HEARD: 5-9 NOVEMBER 2012
DELIVERED : 22 MARCH 2013
FILE NO/S: CIV 1537 of 2011
BETWEEN: JESSICA LUCA
Plaintiff
AND
ROXANNE BROOKE ZUPANOV
Defendant
Catchwords:
Negligence - Motor vehicle accident - Intoxication - Contributory negligence - Turns on own facts
Motor vehicle accident - Vehicle driven by driver with a blood alcohol content of .12 leaving road in roundabout - Inferences open - Knowledge of passenger - Whether passenger guilty of contributory negligence
Legislation:
Civil Liability Act 2002 s 5L
Result:
Judgment for the plaintiff
Damages assessed
Representation:
Counsel:
Plaintiff: Mr K J Bradford
Defendant: Mr D R Clyne
Solicitors:
Plaintiff: Bradford & Co
Defendant: K N Allan
Case(s) referred to in judgment(s):
Paul v Rendell (1981) 34 ALR 569
Tilbee v Wakefield [2000] WASCA 143
Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327
O'NEAL DCJ:
Introduction
At about 1.30 on the morning of 14 June 2008 the plaintiff was a passenger in a car driven by the defendant. After a night of socialising at a pub the two young women had gone to a fast food restaurant for something to eat. While returning to the defendant's house from the restaurant the defendant lost control of her car while negotiating a roundabout. When the car collided with a brick structure the plaintiff was seriously injured. Her most immediate and threatening injury was a fractured C2 vertebra. The plaintiff sues for damages for personal injury caused by the defendant's negligence.
According to breathalyser readings taken by the police afterwards and calculated back, the defendant had a blood alcohol level of 0.122 at the time of the accident. She subsequently pleaded guilty to a charge of driving with a percentage of alcohol in her blood exceeding .08%.
Issues arising on the pleadings
The statement of claim alleges that the car accident that caused the plaintiff's injuries was caused by the negligence of the defendant. There were five particulars of the manner in which it was said that the defendant was negligent. The first of these was the failure of the defendant to wear appropriate footwear when driving. That allegation was ultimately made good by the defendant's own evidence that she was wearing thongs on her feet, and that her foot slipped from a pedal immediately before she lost control of the car, and that that was the cause of the accident. Four other particulars referred to a failure to properly control the car and excessive speed. There was no allegation that the defendant's ability to drive a car was affected by alcohol.
The defence that was filed admitted the fact of the car accident, but denied negligence, and denied even that the plaintiff had been injured in the car accident, received treatment or suffered loss. It is difficult to understand how a legal practitioner (who was not trial counsel) properly instructed could have signed a pleading denying that the plaintiff had been injured in the accident when the unchallenged evidence was that she broke her neck.
Paragraph 3 of the defence alleged that the plaintiff was intoxicated within the meaning of s 5L of the Civil Liability Act 2002 (the CLA) and invoked the presumption of contributory negligence provided by s 5L.
Paragraph 4 of the defence alleged contributory negligence more generally. Particulars to that paragraph alleged that the plaintiff had been a passenger in the car driven by the defendant when the plaintiff,
knew or ought to have known that the defendant was driving the motor vehicle after she had consumed sufficient alcohol so as to render her incapable of having the proper management and or control of the motor vehicle and or when she knew or ought to have known that the defendant was driving the motor vehicle after she had consumed sufficient alcohol that was likely [sic] to affect her ability to drive the motor vehicle and failed to wear a properly adjusted and securely fastened seat belt while occupying a seat position in the motor vehicle with a seat belt fitted … .
The defence does not allege as a material fact that the defendant was so intoxicated by alcohol that she was unable to safely drive a motor vehicle, nor that that the defendant's intoxication caused or contributed to the motor vehicle accident.
At the commencement of the trial counsel for the defendant advised me that it was conceded that the defendant's negligence had caused the car accident and the plaintiff's injuries. There was no stipulation as to the basis of that concession; that is, exactly what failure to take care on the defendant's part was said to have caused the accident.
The defendant maintained however that the plaintiff's negligence contributed to her injury. The defendant also disputed the extent of disability suffered by the plaintiff and the amount of damages that the plaintiff should be allowed.
Background
A number of the background facts are not in dispute.
The plaintiff was born on 20 June 1985. She was nearly 23 years old at the time of her accident.
While she was still in high school she began working part‑time as a checkout operator in a department store. She started that work when she was just 14 years old and continued until after completion of year 12 in 2002. After completing school she began working for a private mortgage lender as an outside settlement clerk. She remained at that job full‑time for a year while at the same time working Saturdays at the department store. After a year she left the mortgage lender and went to work for a company called Mint Settlements. At that job she trained and worked as both an inside and outside settlement clerk. She remained at that position for one year.
In 2004 she left Mint Settlements and took a more responsible job with the law firm Deacons. She began as an administrative assistant and within a year was working as a paralegal in the financial services section of that firm. Her responsibilities were primarily to help prepare mortgages for a major client of the firm, to check documents, to organise settlements and to arrange for documents to be lodged.
She remained at Deacons for just over three years before leaving that firm to go and work for Bankwest. She did that because she wanted to learn the 'bank side' of the kinds of transactions that she had been involved in.
She began working for Bankwest in 2007 but after something less than a year she handed in her resignation effective 27 June 2008. The plaintiff wanted to travel overseas for two and a half months and, after discussing the matter with her supervisor, determined to resign her employment and re‑apply for the same job when she returned from her travel. Unchallenged evidence from her former team leader at Bankwest, Janice Giles, established that the plaintiff was well regarded by her employer and that the likelihood that the plaintiff would be re‑employed by Bankwest on her return was high.
The plaintiff also anticipated that if a position was not available at Bankwest on her return from overseas, she could seek employment at another bank or a financial institution.
In June 2008 the defendant was 30 years old. Prior to the accident she and the plaintiff were friends. They had known each other since 1999. On the evidence it would seem that at the time of the accident they were reasonably good friends. That is no longer the case.
The plaintiff described the last time she spoke to the defendant. About nine or 10 months after the accident the plaintiff went for a friend's birthday party to a pub called the Britannica. She saw the defendant, who came up to her and asked her how she was going. The plaintiff explained that in fact, she was not doing very well, was still in pain and not working. The defendant responded, 'Well you're out aren't you? Welcome to my local. Have a good night'.
Events leading up to the accident
Friday, 13 June 2008 was a normal work day for the plaintiff. She had arranged to go to the defendant's house that evening to socialise and stay the night.
After work the plaintiff went home to her parents' house where she was then living. She showered, got ready to go out, and ate her dinner. Then she went to the defendant's house. The defendant was entertaining some other friends there. The plaintiff's evidence was that there were three other young women there apart from herself and the defendant.
The time of the plaintiff's arrival at the defendant's house was a matter in issue at trial, in part at least because it would have had a bearing on the time that would have been available for the plaintiff to drink alcoholic beverages with the others at the defendant's house.
The plaintiff gave evidence that was not challenged in cross‑examination that she had dinner at her own home that night at around 6.00 pm and arrived at the defendant's house 'about 7ish'. The defendant and other witnesses called in the defendant's case were variable, to say the least, as to the time that people arrived at the defendant's house on this evening. Later I will refer to my conclusions about credibility of the main witnesses, but I accept the plaintiff's evidence that she arrived at the defendant's house at 'about 7ish', for the reasons that she gave.
The defendant provided snacks for the guests, but they contained wheat. The plaintiff could not eat them because she suffers from coeliac disease. Along with most of the other guests however she had something to drink. The plaintiff's evidence was that between 7 o'clock and 9 o'clock when they were driven to the pub, she had between one and two glasses of wine. Her evidence was that she was a 'slow drinker' and that her usual rate of consumption in social situations was about one drink every 40 minutes to an hour. Like the time of arrival at the defendant's house, the evidence of the defendant and witnesses called on her behalf was variable on this point.
The plaintiff said that she and the defendant were driven to the St George Hotel by one of the defendant's friends. They remained at the pub, known as 'the Saint', socialising, dancing and drinking until closing time at midnight.
When the pub closed the plaintiff and the defendant walked back to the defendant's house. The plaintiff said that, although she knew the defendant had been drinking, nothing she saw about the defendant's behaviour caused her any concern. The defendant in her evidence agreed that she had walked home 'perfectly normally'. She agreed in cross‑examination that she 'didn't look like she was drunk' at any time that night.
The accident
When they arrived back at the defendant's house the plaintiff and defendant were feeling hungry. The plaintiff had changed into her pyjamas. In deference to the plaintiff's coeliac disorder the defendant began to make a potato omelette. She peeled, sliced and began to fry some potatoes. She then discovered that she had just one egg in her refrigerator. At that point a decision was made to go to the nearest McDonald's.
The defendant and plaintiff decided to drive to the McDonald's outlet close by at the Innaloo Shopping Centre. Conscious of the fact that the defendant had consumed alcohol earlier that night, the plaintiff asked the defendant whether she was alright to drive, 'just to make sure'.
The plaintiff and defendant got into a Subaru WRX owned by a friend of the defendant. The friend was overseas and he had left the car for the use of the defendant, although she had her own car. The WRX is a small but powerful car.
The defendant took her puppy along putting it in the back seat of the car. The two women drove the few minutes that it took to reach McDonald's and waited for 10 minutes in the drive-through line-up. The plaintiff's evidence was that the defendant's speech and movements were 'fine' and that at no point did she feel unsafe. There is no evidence that there was anything unsafe about the defendant's driving to that point.
They ordered, paid for, and received their food, and the defendant began to drive back to her house. The plaintiff recalled that the defendant braked as they entered a roundabout but 'as she went to accelerate to exit the roundabout then the car lost control'. The car left the road and hit a concrete or brick structure. In the course of the accident, although the airbags deployed, the plaintiff was thrown forward and sideways and she struck her head on the dash of the car.
Although she was in some pain and distress she was able to get out of the car. She remembered there were some passersby, a couple who came over to the car. The girl asked the plaintiff if she was 'okay' and told the plaintiff that her boyfriend had called an ambulance.
Contemporaneous records from St John's Ambulance show that an ambulance was called at 1.32 am and dispatched at 1.35 or 1.36 am.
Contributory negligence
Earlier in these reasons I referred to the defendant's three allegations of contributory negligence by the plaintiff. I will deal with them in turn, setting out the evidence that bears on each and my findings on that evidence.
The difficulty that I have faced in my fact-finding role is that in some critical respects the parties conducted their cases like the proverbial ships passing in the night. Facts which were said to be in issue and relevant to the issues of both contributory negligence and damages were frequently the subject of little or no cross‑examination.
At the commencement of the trial I asked counsel to consider the primary and intermediate facts that I would be asked to find in support of the ultimate findings advocated by counsel, and to provide me with a bullet point list of those facts prior to closing submissions. That did not occur. And, despite that request the parties conducted their cases in some respects at a level of generality that tended to ignore relevant primary facts in favour of the ultimate inferences or conclusions that they wished me to reach. I was provided with almost nothing in the way of reasoned analysis as to why I should prefer the evidence of one witness over another when there was some apparent conflict in the evidence. I mention these matters by way of explanation of the difficulties that faced me here in discharging my role as fact finder.
Against that background I will set out the conclusions that I have reached on issues of contributory negligence.
No seatbelt
The defendant maintained its allegation that the plaintiff, 'failed to wear a properly adjusted and securely fastened seatbelt …' until closing submissions. While that allegation was then abandoned, the manner in which that issue was dealt with may be relevant later in respect to costs.
The plaintiff gave evidence at trial that she did put on her seatbelt and wore it while in the car driven by the defendant. It would appear that every description of the circumstances of the accident given by the plaintiff to medical practitioners has consistently maintained that she was wearing a seatbelt.
In the course of cross-examination it was never directly put to the plaintiff that she was not wearing a seatbelt. Rather she was cross‑examined, without objection, as to her opinion about arguably expert technical matters, inferences that might be drawn, and in particular the reliability or accuracy of a conclusion that the plaintiff reached inferentially about an injury that she suffered in the accident:
Now, you say when the accident happened you were thrown forward and your head hit the windscreen – hit the dashboard - - -? The dashboard.
- - - is that right? --- Yes.
Are you sure it hit the dashboard? ---Yes.
Did you see the dashboard coming up in your face? --- Yeah I hit where the CD player was in the middle.
You're sure it didn't hit the screen? --- I'm positive.
Windscreen? --- I'm sure.
See, if you look at this photograph of the vehicle … and that shows there is a big impact mark on the windscreen? --- Yep.
On the passenger side? --- Yes, that's right.
And it shows also the airbag that had been deployed? --- Yeah.
Are you sure your head didn't hit the windscreen? --- I'm sure.
You say you had your seatbelt on? ---Yes.
And did it work? Did it hold you? --- Obviously not, no.
Well you say your head hit the dashboard and if you had your seatbelt on, are you saying the seatbelt didn't work, is that what you're saying? ---Yeah, I'm – well, I still managed – yeah hit my head.
You did. Yes. And you say you pointed to a mark on your neck as being caused by the seatbelt that you didn't know – think about that until you were in hospital, did you? --- No, cos I know that it was – I know that it was the seatbelt.
Well, how do you know it was the seatbelt? --- because it was right there. There's nothing else broken in the car, it could have only have been the seatbelt.
What about the airbag? --- I don't think an airbag can graze my neck.
You don't know what hurt your neck on the night in question, do you? --- I know it was the seatbelt.
Well, if the seatbelt acted to secure you and hurt your neck, how did your head start – how did your head hit the dashboard? --- Cos the seatbelt was still on and in place, it's just that – cos the impact was so hard, the seatbelt still stayed there but my head went over.
You went sideways you say? --- I went – yeah, into there … the dashboard – the dashboard where the CD player was. So maybe I did go in an angle because that was stopping me from going straight forward, that's why I went on an angle.
The mark or 'graze' referred to by the plaintiff is seen in a series of photographs that became exhibit 1. The plaintiff was shown these photographs in the course of her examination-in-chief and asked about a mark on her neck that appears on them. Asked what the mark was she said, 'that's the seatbelt mark'.
There was no evidence at trial of any injury to the plaintiff's face or head of the kind that might be expected if her head had hit the windscreen. There was no engineering evidence about the condition of the car, the seatbelt, the accident and its consequences for the car or its occupants, no photographs of the accident scene, little evidence as to the aftermath of the accident, and no evidence from any independent witness.
The mark on the plaintiff's neck can be seen most clearly in exhibits 1.2, 1.3 and 1.4. These pictures were taken in hospital about 10 days after the accident. The mark appears as a distinct line beginning part way up the front left side of the plaintiff's neck and travelling down at about a 45 degree angle across the centreline of her chest. Notes from the plaintiff's admission at Emergency at Sir Charles Gairdner Hospital were referred to in the plaintiff's discharge summary: exhibit 16. The notes referred to the finding on admission that an 'abrasion from seatbelt' was noted on the plaintiff's neck.
The decision by defendant's counsel to abandon the allegation of a failure to wear a seatbelt was obviously entirely justified. What is harder to understand is how a properly instructed legal practitioner (not trial counsel) could have signed a pleading making such an allegation in the first place, or maintained it to trial.
Intoxication
The issues of contributory negligence that remain require me to consider whether the plaintiff was intoxicated within the meaning of s 5L(4) of the CLA, and whether a reasonable person in the position of the plaintiff would have foreseen that accepting a ride with the defendant exposed her to a risk of injury by reason of intoxication of the defendant. An issue that is bound up with those is whether I am satisfied that alcohol intoxication caused or contributed to the car accident.
Both the plaintiff and defendant gave evidence that they had been drinking on the evening of 13 June 2008. By 'drinking' here I mean in the usual, colloquial sense, of drinking alcoholic beverages. Apart from anything else, the defendant's blood alcohol reading taken after the accident rather tends to indicate that she had been drinking.
Section 5L of the CLA creates a presumption that a plaintiff was contributorily negligent when it is established that they were intoxicated at the time of the act that caused the harm they suffered. The relevant 'act' here I take to be the driving that caused the car driven by the defendant to crash, injuring the plaintiff. For the purposes of s 5L 'intoxicated' means 'affected by alcohol … to such an extent that the person's capacity to exercise reasonable care and skill is impaired': s 5L(4).
The submission of the defendant on this point was that it was for the plaintiff, '… to prove that she wasn't drunk and that her drinking did not have any effect…'. With respect, that does not correctly state the effect of s 5L.
It is for the defendant to establish intoxication of the plaintiff to the extent described by s 5L(4), just as it is for the defendant to establish on the balance of probabilities that the plaintiff knew or that a reasonable person in her position ought to have known that the defendant was affected by alcohol to the extent that it was foreseeable that there was a risk of injury with the defendant driving.
If the defendant were to establish that the plaintiff was intoxicated to the extent and in the sense set out in s 5L(4) at the time of the car accident, then it would be for the plaintiff to establish on the balance of probabilities that her intoxication did not contribute in any way to the cause of her harm. If she could not, the law would presume that she was contributorily negligent. That would be the case whether or not the plaintiff knew or ought to have known that by reason of the defendant's consumption of alcohol her ability to drive a motor vehicle was impaired so that there was a risk of injury, if that was in fact the case.
With respect to the allegation that the plaintiff knew or ought to have known that the defendant was so affected by alcohol that there was a risk of injury, if that was foreseeable in the sense that it met the threshold criteria for potential liability described by CLA s 5B(1), then the plaintiff's conduct in accepting a ride with the defendant would need to be considered against the matters described in s 5B(2). That in my view sets out the law with respect to ascertaining contributory negligence, s 5L aside, although I have reached those conclusions without the assistance of any submission on the point by either party.
The plaintiff's evidence was that in the approximately two hours when she was at the defendant's house she had one and possibly two glasses of wine. The plan was to go out to the pub later with some of the other young women. They arrived at the pub around 9.00 pm and stayed till closing at 12.00 am.
The plaintiff had been to this pub before on, as she described it, 'a handful of occasions'. Notably she had been there for dinner when the defendant was dating the plaintiff's cousin. The St George Hotel is in effect a pub with an attached restaurant. There is dancing. The plaintiff described it as a 'casual relaxed kind of place where everybody is there for a chat and to mingle'.
The plaintiff said that in the time that she was in the pub on the evening of 13 June she had 'a few drinks' and she was talking, dancing and meeting people 'having a general night out'. In her evidence‑in‑chief she denied that she 'got drunk' that night and she denied that the defendant 'got drunk'. She said that she did not remain with the defendant and the other young women for the entire evening. Rather she mingled and met other people at the pub.
In her cross‑examination she denied that she was 'intoxicated' or 'noticeably drunk' that night or that she and the defendant were 'fairly intoxicated'.
The plaintiff remembered that she had wine at the defendant's house. She was not certain what kind of beverage or beverages she had at the pub. A photograph tendered into evidence shows the plaintiff and defendant together, with the plaintiff 'toasting' with a full glass of champagne, with some bottles and glasses on a shelf behind them.. The photograph appears to have been taken by one of the two women, perhaps using a mobile telephone.
The exact reason for the tender of this photograph was not clear. The plaintiff admitted that she had been drinking, both at the defendant's house and at the pub. The photograph was tendered in the context of a portion of the crossexamination where it was put to the plaintiff that 'throughout the evening' she and the defendant became 'fairly intoxicated'. It was put to the plaintiff that 'you were noticeably drunk' and it may have been intended that the photograph would suggest that. The photograph of the plaintiff and defendant does not have that effect. It depicts two young women, immaculately made up and not obviously affected by alcohol, enjoying each other's company on a night out.
While it was not referred to by counsel, the note of the ambulance attendant tendered by the defendant records the plaintiff giving a history that she had had '4 or 5 glasses of wine'. That is consistent with the evidence that she gave as to the amount she said she had to drink that evening and not inconsistent with what she said she was drinking. Otherwise there was nothing that I was able to discern from the legible portions of the copy of the patient record that referred to any issue or observation about alcohol consumption or intoxication.
There was evidence at trial from two friends of the defendant, Susan Leggo and Katie Hicks, who were present at the house the evening of 13 June and for some of the time thereafter at the pub. The first time that either of them were asked to recall or record the events of the evening of 13 June 2008 was about two weeks prior to the trial, that is more than four years after the event. According to the defendant it was about a week or two prior to trial when she gave those conducting her defence the names of her two friends as potential witnesses.
Ms Leggo's evidence was marked by her inability to remember a number of matters and her uncertainty about others. She thought that she arrived at the defendant's house at about five o'clock and that all the other women were already present. She remembered that she drank alcohol at the defendant's house. She thought it might have been Bacardi but as she said, 'I can't really remember'. She said that all of the women at the defendant's were drinking, 'bar Katie, from memory.' She was asked if she could recall, '… how many drinks anyone had?' To this she said, 'no, I don't recall, quite a bit I would say, yeah, but I couldn't say exactly how many.' When asked if she had had dinner before she went to the defendant's house Ms Leggo said, 'I think we may have eaten at Roxanne's house. If I wasn't eating like a proper meal, I would have eaten before I went out but we always sort of had chips and things like that whenever we go out anyway …'
When asked what time they left to go to the pub she said,
I can't recall exactly, but I think we may have been at Roxanne's for maybe an hour and a half to two hours so maybe 7 o'clock‑ish. But I can't say for sure.
Asked what the women have had to drink at the pub she said,
I think – I know at one point we were drinking champagne. We'd bought bottles and we were sharing bottles of champagne. It was maybe spirits also. We would have maybe been having shooters as well, most likely been having shooters as well.
In cross‑examination it was suggested to Ms Leggo that she couldn't really say whether the women had drunk shooters at the pub she answered, 'I say that because when we go out that's – that's what we would drink'.
In examination‑in‑chief she was asked 'how did everyone appear' over the evening. To this Ms Leggo answered, 'I'd say drunk'. When asked the question, 'was that all of you' she said, 'yeah, all, yeah'. She said that they 'all'- seemingly including Katie Hicks - left the pub when it closed at midnight.
Ms Leggo gave evidence in cross‑examination that while there was 'possibly' some mingling with other people at the pub, the group of women 'generally' stayed together and did not separate during the night. Despite that Ms Leggo met a friend at the pub and left with him and his friends. She was at the friend's house when the defendant called her, told her of the car accident, and asked for her assistance to get the defendant's driver's licence from her house.
Ms Leggo went to the scene of the accident and saw the defendant and the car. The plaintiff had been taken away by ambulance. Ms Leggo seemingly had the presence of mind to examine the car and observe the shattered bit of windscreen on the passenger's side. From this Ms Leggo concluded that the plaintiff had not been wearing a seatbelt and had struck the windscreen. Ms Leggo said she visited the plaintiff in hospital twice. Based on her observation of the car she was certain that she said to the plaintiff (rather unhelpfully, given the fact that the plaintiff was lying in hospital with a broken neck) 'I bet you wish you were wearing your seatbelt'. She said that she could not remember the plaintiff's response.
I found that portion of Ms Leggo's evidence incredible. She would have seen that the plaintiff was lying with her neck immobilized but no apparent significant injury to her head or face. The idea that in those circumstances Ms Leggo would have raised the matter as an assertion of fact, without first asking the plaintiff if she was wearing a seatbelt, is at least faintly ridiculous. Unless Ms Leggo did not come up to proof on what the plaintiff was supposed to have said in response, the evidence seems pointless in any event. A question asked of the plaintiff in cross‑examination suggested the words it was anticipated that Ms Leggo would put in the plaintiff's mouth. To the extent that Ms Leggo's evidence hinted at some tacit acceptance by the plaintiff that she was not wearing a seatbelt, I reject it.
Much of Ms Leggo's evidence reflected what appeared to be her assumptions about what 'we' would have done on such occasions. She was not asked about the length of her friendship with the defendant, how many such occasions she had been present with the defendant or the defendant and the plaintiff, whether the other occasions she was remembering were before or after 13 June 2008, or how familiar she was with the plaintiff and the plaintiff's behaviour or conduct when sober and when she had been consuming alcohol.
I have little confidence in Ms Leggo's claimed recollection of the events of 13 June 2008, and I give it little weight. That is, I doubt whether she has much in the way of specific memories of who did what, and how they behaved that evening. On her own evidence, whatever the accuracy of her observations about the others, she was 'drunk'.
Katie Hicks said that she arrived at the defendant's house at 'around 6:30' that night. As she recalled, the other four women were already there. Once there, she said, 'we were basically sitting around the kitchen table and everyone was drinking'. Everyone that is except Ms Hicks because, 'I drove'. Because Ms Hicks' job required her to have a driver's licence, she was especially careful about drink driving she said. She said that the others were 'all drinking at the same rate', an expression she used more than once in her evidence. She said that the others were drinking 'vodka, lime and sodas, Bacardi and Coke, wine, champagne'. She was the only witness who suggested that vodka and champagne were drunk at the defendant's house.
She said that they remained at the defendant's house for about an hour and a half before going off to the St George hotel. She drove the other women to the hotel. She said that it was, 'basically … a girls' night out so more drinking and dancing and chatting'. When asked what she could say about 'the other people who were there in terms of their drinking and the effect of drinking on them' she said,
Yeah. They were all drinking at the same rate, sort of all buying rounds for everyone at the same time and I guess as the night progressed they sort of got a bit more rowdier and the dance music became a bit more silly, I guess you could say, and I decided to leave cos obviously I wasn't drinking so little bit boring for me.
Asked what she noticed about the condition of the defendant Ms Hicks said, 'Well, she'd obviously been drinking the same as everyone else and she was having a good time the same as everyone else was'. When asked specifically whether or not she observed whether the alcohol the defendant had consumed, 'had had any impact on her', Ms Hicks said 'No different from any other night that we'd - we'd been out … . She was definitely drunk, yeah.' Asked about the condition of the plaintiff, Ms Hicks said, 'well, we – they were all sort of drinking the same rate so, in my eyes, they would all have been intoxicated around the same sort of level.'
Ms Hicks left the St George Hotel at 10.30 pm and had no further involvement with the plaintiff or defendant that evening or next morning. That is, she last saw the plaintiff and the defendant three hours before the accident. There is no evidence as to when Ms Hicks learned that anything of moment had occurred after she had left the pub. Like Ms Leggo, there is no evidence as to how frequent her contact was with either the plaintiff or defendant and whether the occasions on other nights that, 'we've been out' preceded or post‑dated 13 June 2008.
In cross‑examination Ms Hicks agreed that she couldn't dispute that the plaintiff had no more than two drinks at the defendant's house because as she said, 'I wasn't counting everyone's drinks'. She also agreed that she wasn't counting drinks at the pub. While she agreed that she did not hear any of the women 'slurring their speech' she said that they were 'definitely intoxicated'. When it was put to her that neither the plaintiff nor defendant 'showed any outward signs of being intoxicated or drunk' Ms Hicks said, 'Yeah, they did.' That evidence, elicited in cross‑examination, and her evidence that after a time 'they sort of got a bit rowdier' was the high water mark of observations of physical symptoms of intoxication.
Just as with the evidence of Ms Leggo, I have little confidence in the evidence of Ms Hicks. On her evidence there was nothing particularly remarkable about this occasion. I very much doubt that her recollection extends to the particular behaviour of the plaintiff or defendant, on a night four years ago, that was apparently similar to other nights she has enjoyed with the defendant.
The defendant's sister Jacinta was said to be present at the defendant's house and at the pub on 13 June 2008. She was not called to give evidence, and no reason was offered as to the fact that she did not attend to do so. It was not submitted that I should draw any inference because of that, and I do not.
When the pub closed at midnight the plaintiff and defendant walked to the defendant's house. The journey took about 10 minutes. Since the plan had been for the plaintiff to stay the night at the defendant's, when they arrived at the defendant's house the plaintiff changed into her pyjamas and took her shoes off. To that point she said that she had been wearing, 'heels', that is high heels.
The plaintiff was not cross‑examined with respect to the walk home from the pub. As I have noted, the defendant gave evidence in cross‑examination that there was 'no problem' when they left the pub and that she walked home perfectly normally. Consistent with this evidence I find that the defendant walked home from the pub with no apparent difficulty.
The defendant's evidence as to what the plaintiff had to drink either at the defendant's house or at the pub was no more than a guess. Despite evidence that at the pub she and the other women including the plaintiff had had 'round for round' drinks, it became clear in cross‑examination that the defendant had no idea either what the plaintiff had been drinking or how much she had had to drink.
It was apparent from the defendant's evidence that she had some experience as a drinker of spirits. She said 'Bacardi' was what she always drank. She was a regular at The Saint. In cross‑examination the defendant agreed that, so far as she was aware, she did not appear drunk on this evening. Whatever the pattern of drinking had been at the pub, and the evidence in that respect is vague at best, the defendant agreed that there was no further consumption of alcohol once they left the pub.
The plaintiff's evidence was that both she and the defendant were hungry when they arrived home. Because of the plaintiff's dietary problems the defendant offered to make her a potato omelette. The plaintiff gave evidence that she observed the defendant peel, thinly slice and fry some potatoes and that the defendant did all of this without any apparent difficulty. The plaintiff was cross‑examined, not about whether the defendant had in fact demonstrated that she was capable of relatively fine motor skills, but about how many potatoes in fact had been peeled, sliced and fried. As it turned out the defendant only had one egg in her refrigerator and was unable to make an omelette.
It was that which prompted the decision to go to McDonald's.
The accident and intoxication of the defendant
Despite the failure of the defence to allege as a material fact that the defendant's car accident was caused or contributed to by the defendant's alcohol intoxication, it is obviously a central issue here. I have referred to the plea initially denying that any negligence of the defendant caused the accident and the subsequent admission of negligence without reference to any particular.
A submission was made to me on behalf of the defendant that I should find that the accident was caused by the defendant's intoxication. In seeking to prove this the defendant's counsel relies on the evidence of the defendant and her friends about consumption of alcohol and those witnesses' observations, the fact of the defendant's car accident, and the subsequent blood alcohol test result as proof of the defendant's level of intoxication. Defendant's counsel urges on me that '… the blood alcohol level of the defendant is itself sufficient to come to the conclusion that the defendant was significantly intoxicated such as to be unable to properly control her vehicle. The court is permitted to draw that inference.'
Mr Clyne's reliance on the blood alcohol reading is understandable in the circumstances.
The only evidence as to the manner of the defendant's driving prior to the accident was the plaintiff's observation that she saw nothing that made her concerned for her safety.
There is very little evidence as to the precise cause of the accident or even the actual manner of the accident and its aftermath. The plaintiff said that after they had purchased their food they had to drive back through a roundabout to get back to the defendant's house. She said that the defendant entered the roundabout and braked as she entered it. The plaintiff remembered that she had food on her lap and was picking at some chips at the time. She said, '… We went through the roundabout and as she went to accelerate to exit the roundabout then the car lost control.' She remembered seeing the sign for a fitness business, and she remembered that the car hit some kind of concrete wall. Her head hit the dashboard, she was thrown back in her seat, and then the airbags deployed.
The defendant described the accident in this way, 'I was in first gear, going around the round‑about, … there's a hill … so you're trying to get your friction point which I – which I got, then I went through and my foot just slipped and went into the brick wall'. At another point she said she remembered, '… my foot slipping and the car mounting the kerb and hitting a – a brick wall.'
In her evidence‑in‑chief the defendant said that what she remembered about how the accident occurred was, '… my foot slipping and the car mounting the kerb and hitting a ‑ a brick wall'. In cross‑examination the defendant explained that she had been wearing rubber thongs on her feet because she doesn't like to, 'wear no shoes'. In crossexamination counsel tried to explore the role of the rubber thongs in the accident,
Your foot slipped where? ‑‑‑ Off the accelerator.
Off the accelerator or onto?‑‑‑Well, it pushed it down so off, so it went down onto the side.
So where was your foot before it slipped‑‑‑It was on top of the accelerator.
Of the accelerator?‑‑‑Mm.
…
It slipped and what did – what had happened to the accelerator then‑‑‑I don't know what you mean. It – I just slipped off the accelerator.
Off the accelerator?‑‑‑Yeah.
Onto what?‑‑‑Onto the ground.
Well, what made the car go faster or mount the kerb?‑‑‑I don't know.'
The defendant denied that the car spun around when she lost control and she did not accept that the impact between the car and the wall that it struck was especially forceful. A photograph of the car taken after the accident was tendered as exhibit 12. It shows a reasonable amount of damage on the left front of the car that has displaced the bumper and bonnet of the car. There is no evidence of the speed of the car and it would be impossible for me to say what amount of force was necessary to cause that degree of damage.
No photographs of the scene of the accident were tendered that would allow me to work out where the car ended up or what exactly it was that the car struck nor was there any clear description of that in the evidence. Although both the plaintiff and defendant referred to two people who were apparently witnesses to the accident, they were not called to give evidence at trial. Police attended and I assume investigated the accident. There is no evidence from any police officer as to what they observed about the aftermath of the accident or the condition of the plaintiff and defendant.
There is of course the fact that the defendant was breathalysed and gave a blood alcohol reading of 0.122% when calculated back to the time of the accident. She said she was charged with and pleaded guilty to an offence of 'drink driving'. While her evidence was that she was not exhibiting any signs of intoxication at any time that night, the defendant asserted, 'I blew over. Obviously, I'm drunk.'
The Road Traffic Act 1974 creates a series of offences where a driver of a motor vehicle is found to have consumed alcohol. For persons holding ordinary licences, the threshold level is 0.05g of alcohol per 100 ml of blood (0.05%). Penalties that apply to this category of offences increase as the blood alcohol concentration increases. Logically, that reflects the increasing likelihood that the driver's ability to control their motor vehicle will be impaired, even having regard to the variable effects of alcohol across the population. By s 63(5) of the Road Traffic Act, when the driver's blood alcohol level reaches 0.15g, that driver, 'shall be deemed to have been under the influence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle.'
Unlike the case of Tilbee v Wakefield [2000] WASCA 143, relied on by the defendant, there is no pharmacological evidence here as to the significance of a blood alcohol level of 0.122%, either with respect to drivers generally or the defendant in particular. Nor is there any evidence of bad driving, but for the accident itself. Notwithstanding that I will assume that that blood alcohol level would have caused a degree of impairment in the defendant's ability to control a motor vehicle, in particular by slowing reaction times and lessening her hand‑eye coordination and motor control. It is at least probable that that would be the case, to some degree.
That however does not resolve whether the defendant's intoxication caused or contributed to the car accident. While plainly it had that potential, there are drivers with blood alcohol levels like the defendant's or even greater who are only detected because of random breath testing. Many accidents are caused by drivers who are entirely sober. Not every driver with a blood alcohol level equal to or greater than the defendant's will have an accident, and not every accident involving a driver with such a blood alcohol level will have been caused or contributed to by intoxication. The question here is whether, in all the circumstances, I should infer that the accident was probably caused or contributed to by the defendant's intoxication.
There are several difficulties in drawing the inference that the accident was caused or contributed to by the defendant's intoxication. I have already described my reservations about the observations of the defendant and her two friends about 'drunkeness', as general as they were in most respects. Importantly, so far as demeanour could suggest intoxication, the evidence of both the plaintiff and the defendant was that the defendant was not obviously affected by alcohol. All the observations of the plaintiff that I have referred to are inconsistent with any significant degree of intoxication.
It is also the case that the evidence of driving up to the point of the accident does not suggest an impaired ability to drive. The evidence of the actual cause of the accident is vague. In my view, the likely immediate cause of the accident is that the defendant's foot slipped from the brake pedal to the accelerator because of her regrettable choice of footwear. It was not suggested by counsel for the defendant and it cannot be said in my view that the choice of thongs as footwear is suggestive of intoxication. It was a choice as normal for the defendant as it is for many other Western Australians.
The accident may have been caused by the defendant's lack of familiarity with the small, powerful motor vehicle she was driving, or with the manual transmission that this car was obviously fitted with. Both are possibilities, although I acknowledge how thin the evidence is with respect to each.
Significantly, the defendant in cross‑examination denied that the accident was caused because she was 'drunk'. She blamed the accident on her foot slipping from a pedal.
In all of the circumstances I am not prepared to draw the inference that the accident was caused or contributed to by intoxication on the part of the defendant.
For the purpose of dealing with other contributory negligence issues raised by the defendant however I will assume that the defendant's consumption of alcohol did contribute to this accident. The question must remain, what did the plaintiff notice or should the plaintiff have noticed about the defendant's ability to safely drive a motor vehicle prior to the accident?
The plaintiff's ability to accurately assess the defendant's sobriety, to assess it as a reasonable person should, could be affected by her own intoxication. That of course is also relevant to a consideration of the applicability of s 5L CLA. To what extent was the plaintiff herself intoxicated? The answer to that largely turns on my assessment of the credibility of the main witnesses.
Credibility of the plaintiff
The plaintiff gave evidence in a manner that was straightforward, without affectation or apparent embellishment. It is a manner which, according to medical reports tendered in evidence at trial, has been previously observed by some of the medical practitioners who have seen her.
She had an apparently good recollection with an appropriate level of detail. She answered questions in examination‑in‑chief and cross‑examination without hesitation and without cavil. Her evidence was not significantly challenged and it was not undermined in cross‑examination. Despite the fact that the plaintiff was the subject of surveillance and secretly video recorded, with that evidence played at trial, it was not suggested that the plaintiff was malingering or that she did not experience 'from time to time' the problems she had described. In closing submissions the position of counsel for the defendant was that, with the exception of submitting that she had understated 'to a significant degree' her own consumption of alcohol on 13 June 2008, it was not suggested the plaintiff had 'told lies'.
Credibility of the defendant
Although the plaintiff and defendant were friends at the time of their car accident their friendship dwindled and ended thereafter. That has occurred not because of any confrontation between them. On the evidence of both they drifted apart, reducing, then ceasing contact.
Despite that it might be thought that having caused the accident that left the plaintiff with a broken neck, the defendant would be contrite to some degree, even if she believed the plaintiff should accept some responsibility for the situation in which she found herself.
When the defendant gave evidence there was not a hint of contrition. To the contrary, in the witness box her demeanour varied from off‑hand to insincerely matter of fact, to querulous and resentful, with an occasional false perplexity accompanied by much raising of her eyebrows. The only time the defendant demonstrated obvious enthusiasm for answering a question was when she had or took the opportunity to describe the plaintiff's condition on this evening as, 'absolutely drunk' or 'she definitely was drunk'.
Looking only at demeanour, the defendant was a most unconvincing witness.
Nor was acceptance of her evidence made easier by its content. I will refer to just a few examples. Apart from her absolute certainty that she and the plaintiff were drunk on this evening, there was little else that the defendant seemed even relatively confident of in her recollection. Having asserted in her evidence‑in‑chief that all of the group on this night out had 'round for round drinks' and that she, the defendant, had 'easily more than five' drinks at the pub she later conceded that she did not in fact remember the events of the evening that well and that she had no idea what quantity of drinks the plaintiff had had. In her evidence‑in‑chief she asserted that the plaintiff had arrived at her house between about 5.00 ‑ 5.30 pm (erroneously shown in the transcript as 5.35 pm) and that 'we' meaning the plaintiff, the defendant, Susie Leggo, the defendant's sister and the sister's husband, had dinner and then some drinks before going to the pub. She was the only witness to suggest that her sister's husband was present.
In cross-examination she conceded that she wouldn't know whether the plaintiff ate at the defendant's house or at her own home. In cross‑examination she conceded that she did not know what the plaintiff drank at her, that is the defendant's house, apart from the fact that, 'oh she definitely was drinking'.
The defendant asserted that, contrary to the evidence of the plaintiff and Katie Hicks, the group walked to the pub from the defendant's house.
The defendant's evidence stood in stark contrast in every respect to the plaintiff's. The defendant was not in my view a reliable witness and I am unable to conclude that she was an honest witness. Where the defendant's evidence conflicts with that of the plaintiff I accept the plaintiff's evidence unless there is other evidence that I find to be credible that supports the defendant.
Was the plaintiff intoxicated?
In my view the only reliable evidence of how many drinks the plaintiff had on the night of 13 June is that of the plaintiff. Even that is relatively vague beyond her evidence of having one and at most two drinks at the defendant's and then 'a few', that is, a small number at the pub. If her statement to the ambulance operators was regarded as an admission, a submission not advanced by counsel, it would be open to me to conclude that over the course of the evening- in the period from about 7.00 pm to midnight - she had four or five alcoholic beverages. Of course, absent evidence as to what exactly she was drinking, the alcohol content, the size or measure of the drinks, the pattern of drinking and the plaintiff's weight at the time, it would not be possible to estimate the plaintiff's blood alcohol level at any point, even if I was assisted by expert evidence, which I am not. Even then evidence would be required as to the significance of any particular blood alcohol level and its probable effect here based on any observations of the plaintiff that I was able to accept.
It seems to me that I can take notice of the physiological fact that alcohol once consumed is progressively absorbed into and eliminated from the blood, and the greater the concentration of alcohol in blood the greater the likelihood of intoxication and its physical signs. That does not advance things very far here.
I have referred to my rejection of the evidence of the defendant and my reservations about the evidence of Ms Leggo and Ms Hicks. Even if I were to accept their evidence about claimed observations of the behaviour of the plaintiff, which I do not, a statement by a witness that another was 'drunk' or 'intoxicated' is at best a statement of opinion or a conclusion. It depends for its weight on the experience of the observer and the facts that are said to support the opinion. Here, there is little or nothing of either kind.
The plaintiff gave evidence that she thought the accident had occurred between 12.30 and 1.00 am. In fact, based on the ambulance records it probably occurred shortly before 1.30 am. It was put to the plaintiff in cross‑examination that her error as to what time the accident occurred was a consequence of intoxication on that night. She accepted the correctness of the ambulance records but denied that her error about time was a consequence of intoxication. Nor do I accept that an error of that kind, of 30 or 45 minutes, four years after the event, is indicative of intoxication.
In the first instance it is for the defendant to satisfy me that the plaintiff was intoxicated to an extent that might impair her judgement generally or to the extent described by s 5L(4). I am not so satisfied.
Intoxication of the defendant
It is still necessary for me to consider whether on all the evidence the plaintiff knew or ought to have foreseen that accepting a ride with the defendant was likely to expose her to a risk of injury because of the defendant's intoxication.
I accept the plaintiff's evidence, unchallenged in cross‑examination, that her observations of the defendant did not in fact leave her with any concern about the ability of the defendant to safely drive to the McDonald's restaurant. The defendant's own evidence was that she was not showing signs of drunkenness.
The question remains however whether a reasonable person in the position of the plaintiff would have foreseen a risk of harm, based on what the plaintiff then knew or ought to have known: CLA s 5K(2). Whether the plaintiff is to be found liable in some degree for the harm that she herself suffered is to be determined in the same way as the question of whether someone is to be held liable for harm caused by them to another person: CLA s 5K(1). That is, the plaintiff's conduct is to be assessed against the criteria set out in CLA s 5B. The submissions of the parties focused only on the issue of whether the defendant was so affected by alcohol as to be unable to properly drive her motor vehicle and whether the plaintiff knew or ought to have known that.
The plaintiff was aware that over the course of the evening the defendant had consumed alcohol. She was not aware of the precise amount. In my view however, she knew enough to know that there was at least a question as to the defendant's fitness to drive a car. In my view, having regard to the circumstances that later arose, including the two women's hunger and the time of night, reasonable care required that before she accepted a ride with the defendant- to or from the fast food restaurant- it was necessary to make close observation of the defendant to determine her fitness to drive, and to decline a ride if any symptoms of intoxication, even relatively slight ones, were observed.
When the pub closed the plaintiff and the defendant walked to the defendant's home. At the defendant's home the plaintiff watched the defendant preparing an omelette, exercising the relatively fine motor skills of peeling and slicing. It was suggested to the plaintiff in cross‑examination that the defendant's failure to remember that she only had one egg, and her failure to check that before she chopped the potato should have indicated to the plaintiff that the defendant was affected by alcohol. In my view that fact does not have the significance that counsel for the defendant suggested.
More than an hour after the two had left the pub, with no further consumption of alcohol, the lack of eggs prompted a decision to drive to McDonald's. The two women were in the car together for the trip there, and sat together for about 10 minutes in line waiting for service, before getting their food and leaving the restaurant.
The plaintiff was aware that she needed to consider whether it was prudent to accept a ride or to continue to ride with the defendant because of the consumption of alcohol earlier in the evening. Her evidence was that she observed nothing abnormal about the defendant's behaviour. She said of the defendant, 'her speech and movements appeared to be fine'. With respect to being in the car with the defendant driving she said, 'At no point did I feel that it was the wrong - like that it was unsafe'.
The extent of cross‑examination on the subject of the plaintiff's observations of the defendant was limited. She was not challenged as to any of the details of her observations of the defendant. It was put to the plaintiff that at The Saint she and the defendant 'were basically going drinking rounds … and going round for round', and that 'throughout the evening you and she became fairly intoxicated'. The plaintiff denied those propositions. When it was suggested to her that, 'you were noticeably drunk' she denied that.
The defendant's own evidence was that she, that is the defendant, was not visibly affected by alcohol.
I accept the plaintiff's evidence that she did not see the defendant exhibit any physical signs of intoxication.
Although the plaintiff knew that the defendant had consumed alcohol in the course of the prior evening, from the time that the pub closed the plaintiff had had the opportunity to closely observe the behaviour of the defendant on the walk home, at the defendant's home, while cooking, and while driving to the restaurant and waiting in line. I am satisfied that because she was aware of the alcohol consumption the plaintiff had turned her mind to the possible effect of alcohol on the defendant's ability to safely drive a motor vehicle. Given the plaintiff's observations in that respect, given the absence of any signs of intoxication, I am not satisfied that she acted unreasonably for her own safety in accepting a ride with the defendant, and in particular in riding with the defendant back from the restaurant.
It follows that I am not satisfied that negligence by the plaintiff contributed to her injuries from the accident.
The plaintiff's injuries, treatment and recovery
Immediately following the accident the plaintiff noticed pain in her neck and a numb feeling with 'pins and needles' throughout her whole body. Instinctively she held her head between her hands, keeping her head still.
When the ambulance officers arrived they put her neck in a collar brace. She was taken to Sir Charles Gairdner Hospital where she was seen in emergency. She was sent for some scans. She was found to have a fracture involving both pedicles of the C2 vertebra, with the pedicle fracture on the left extending into the C2/3 facet joint. The pedicles effectively act as a bridge across the middle of the vertebra, connecting the main body of the vertebra to the bony structures that attach to the muscles and ligaments that connect vertebrae to each other and keep the spine in column. This type of fracture at this location is colloquially and morbidly known as a 'hangman's fracture'. It is unquestionably a very serious injury and it was obviously so regarded by those who provided treatment for the plaintiff.
There was 1.5 mm of anterolisthesis of C2 on C3. In other words the C2 vertebra was displaced slightly forward over the vertebra beneath it.
On 17 June 2008 the plaintiff was transferred to the Sir George Bedbrook Spinal Unit at the Shenton Park campus of Royal Perth Hospital under the care of Mr John Ker, the head of the department. After a few days of bed rest she was immobilised with a SOMI brace. While the fracture was initially very painful, fortunately, there was no neurological impairment.
The plaintiff remained at Shenton Park for three or four days after the SOMI brace was fitted. Her parents, who were to be responsible for her care, had to learn how to change the SOMI brace for a Philadelphia collar as well as some other aspects of her care. She began to wear the SOMI brace during daytime and a Philadelphia collar at night while she slept. She was discharged from Sir George Bedbrook Spinal Unit on 26 June 2008, and returned to her parent's home.
Conclusions about the extent of the plaintiff's disability and retained work capacity
It is necessary to resolve the following questions:
(1)What symptoms was the plaintiff experiencing as of the date of trial and to what extent did they disable her from pursuing full-time employment?
(2)If the plaintiff currently has the capacity for full‑time work, when did she first have any capacity to work and when did she first have the capacity for full‑time work?
(3)What was the cause of the symptoms that she has experienced and in particular were they physical sequelae of the plaintiff's accident?
(4)What prospect is there of any future improvement?
(5)What loss has the plaintiff suffered and will she probably suffer in future as a consequence of her injuries?
Given the position taken by the defendant with respect to the plaintiff's reports of her symptoms there is no reason for me to regard what the plaintiff said other than at face value. I have set out her evidence in that respect in some detail above and I will not repeat it. While, in light of the position taken by the defendant, I accept that the plaintiff has honestly reported her symptoms, I do not accept her description of her current position as the limit of what she is capable of achieving as reliable.
With respect to the cause of her symptoms past and present, the problem that she has experienced with headaches, the analysis is made somewhat more difficult by the manner in which the trial has been conducted. On the whole I prefer the evidence of Dr Silbert. His conclusion that, even with the fracture healed, a fracture of the pedicles of the C2 vertebrae is likely to cause problems for someone whose job demands the head neck and shoulder posture for constant attention to a computer screen, is consistent with common sense. It is also consistent with other medical evidence that accepted that the plaintiff had a degree of permanent cervical impairment.
Dr Silbert believes that her headaches are a combination of cervicogenic and muscular. He expects improvement in the headaches 'over the next couple of years once extraneous stressors are removed, with intermittent exacerbations over time …'
I attach considerable weight to Mr Ker's qualifications and experience in the treatment of injuries such as the plaintiff suffered and his greater involvement in treating the plaintiff than any of the other medical experts. I attach particular weight to Dr Silbert's experience in dealing with headaches, an experience which by nature of his area of speciality is greater than that of any of the other medical experts. The views of Mr Ker and Dr Silbert are also consistent as to the significance of the plaintiff's response to the cryorhizotomy treatment of Dr Davies.
I attach somewhat less weight to the evidence of Dr Slinger and Dr Rosenthal. In the case of Dr Slinger that is because it seems to me he took on to some extent the role of an advocate in the course of his evidence. With respect to Dr Rosenthal, having recommended that the opinion of Dr Silbert be sought, he then chose to substantially disregard that opinion when it contradicted the views that he had previously held.
Both Dr Slinger and Dr Rosenthal accepted that the plaintiff would have a degree of disability as a consequence of the injury to her neck. Neither in my view fully appreciated the extent to which her work, particularly her work at Bankwest, required a steady concentration on a computer screen, with limited opportunities for breaks. Dr Rosenthal accepted the possibility that the plaintiff's work life might be shortened because of degenerative changes in her neck, although he was optimistic that that was not likely to be an aggressive problem.
The only reservation that I have with respect to the evidence of Mr Ker is that he is, in my view, unduly pessimistic in concluding, at least in his evidence at trial if not in his last report, that further improvement in the plaintiff's condition is unlikely. There may not be reason to think that any pathology behind her headaches will 'suddenly' resolve, but it is not in my view unrealistic to expect further improvement. It is, as Dr Silbert said, difficult to disentangle the various contributing sources of the plaintiff's headaches. To the extent that the plaintiff's headaches have a muscular cause I conclude that there is every reason to think that there is still some further room for improvement. To the extent that depression, anxiety, apprehension, and inhibition, all sequelae of the plaintiff's accident, have discouraged her resumption of full physical activities there is reason to be optimistic. The preponderance of the medical opinion is that the resolution of the litigation and the passage of time will bring improvement even if, as Dr Silbert suggested, there may be intermittent problems that require treatment of the kind that he has suggested.
The plaintiff has demonstrated an ability to increase her hours of work to five per day after a very tentative start. Notwithstanding her concerns that she has reached her limit, the medical reports that I have referred to and the surveillance video suggest that, at least when she is unconscious of her status as an injured person, there is a lack of inhibition. On all of the evidence here it is reasonable to conclude that the litigation and trial process have contributed to impede the process of healing. As time passes there is likely to be improvement, even accepting there will be a permanent residual disability to the degree described by Dr Rosenthal. I accept that there is a chance in the relatively distant future of the injury to the neck becoming increasingly symptomatic with age.
The next question is what loss the plaintiff's injuries have caused and will cause her.
Past loss earning capacity and damages
A letter from Bankwest dated 23 October 2012 was tendered by consent. It sets out salary rates from 2008 to 2012 for the position occupied by the plaintiff. Another document tendered by consent was a schedule of earnings showing not only the plaintiff's earnings prior to the accident but her earnings since with Floorwise Pty Ltd. Based on those documents the money that the plaintiff would have earned had she returned to Bankwest on 1 October 2008 is set out below. The figures in parentheses are net of tax.
01/10/08 to 30/06/09 $36,693
($29,549)
01/07/09 to 30/06/10 $51,718
($41,681)
01/07/10 to 30/06/11 $53,270
($42,713)
01/07/11 to 30/06/12 $55,401
($44,585)
01/07/12 to 9/11/12
$19,944
($15,930)
Total: Gross $217,026 Net ($174,458)
Following her return to work in February 2011 at Floorwise Pty Ltd the plaintiff earned the amount set out below in the periods shown. She was paid at a rate of $35 an hour, which I was told by Ms Connelly was a 'casual' rate. Once again the figures in parentheses are net of tax.
21/02/11 to 30/06/11 $6,457
($6,009)
01/07/11 to 30/06/12 $32,642
($28,647)
01/07/12 to 09/11/12 $14,470
($12,511)
Total: Gross $53,569 Net ($47,162) Net loss is $174,458 - $47,162 $127,296 Interest 4.115 years $15,715
It can therefore be seen that the plaintiff's past reduction in work capacity up to the time of trial resulted in lost earnings or damage in the amount of $127,296. Interestingly however, for the period 1 July 2011 to 30 July 2012 the plaintiff earned, net of taxes, $28,647 or $2,387 per month. That equates to 64% of what she would have earned had she remained in her position at Bankwest. In the period from 1 July 2012 to 9 November 2012 the plaintiff actually earned net $12,511. That equates to 78% of what she would have earned had she remained in her position at Bankwest. That was of course working a five hour day on average.
The defendant's submission, which I accept, is that the plaintiff is not being untruthful in describing problems that she has experienced. The defendant's submission however is that given medical evidence called by the defendant the plaintiff unreasonably failed to return to work sooner and has unreasonably failed to return to full time work. I do not accept that submission. While residual anxiety and inhibition may have limited her willingness to fully exercise her neck and perhaps thereby reduce or eliminate the muscular component of her headaches, in my view all of the consequences of the injury have conspired to slow the healing process. According to Dr Ker and Dr Silbert there is still a residual cervicogenic problem contributing to the plaintiff's headaches, and no doubt reinforcing her view that she is still injured and at risk of injury. For the reasons that I have expressed, while I believe that her headaches will decrease even if they are not entirely eliminated, that does not disbar the plaintiff from the losses that she has suffered to the time of trial.
Relying on the figures included in the plaintiff's outline of closing submissions the plaintiff is entitled to the following:
Net Loss $127,296
Interest for 4.115 years $ 15,715
Total$143,011
With respect to the past loss of superannuation the plaintiff is entitled to the statutory amount on her lost gross earnings. Again, relying on the plaintiff's calculation:
Gross difference in lost earnings
($217,026 - $53,569) $163,457
Lost superannuation at 9% $ 14,711
Interest on that amount for 4.115 years equals $ 1,816
Total lost superannuation and interest $ 16,527
Future loss
The submission on behalf of the defendant is that the plaintiff's claim for future damages can only be assessed on a 'global' basis. The defendant says that because the plaintiff now has the capacity for full‑time work, although there may be some 'very modest reduction in the range of employment available to her and the possible shortening of her working life in the distant future', damages in the range of $30,000 ‑ $50,000 will fully compensate the plaintiff for this head of damages.
The submission for the plaintiff is based on the proposition that there will be no improvement in the plaintiff's condition and work capacity but there will be 'expected deterioration by the degenerative process'. I am invited to assess the plaintiff's lost earning capacity at 50%, yielding a lifetime loss of earnings of $352,982 based on net weekly earnings to retirement age of 65 of $885 and the appropriate multiplier. From that I was told 'the fact that she may experience some recovery' should be taken into account with all of the other vicissitudes of life when applying a discount for contingencies of between 2 ‑ 6%.
I note that there is in fact no evidence here that the plaintiff actually intended to remain in full‑time employment to age 65. There is no evidence at all about her future plans. Notwithstanding her accident, she is to all outward appearances a young woman in generally good health, in a relationship with a man that has advanced to the point where they have bought a house. There is no evidence about her plans in that regard but it would hardly be remarkable were she to decide to have children. If that were to happen given the fact that, notwithstanding the advances that have been made, the burden of child rearing falls disproportionately upon mothers, it would be the plaintiff's work and career that suffered.
Another contingency entirely unexplored is the prospect of the plaintiff finding other employment or advancing into a position with more managerial responsibilities. The trial was conducted on the basis that a young woman who is obviously intelligent and has in the past shown ambition was likely to remain forever in a position where she was mainly or entirely tied to a computer screen and keyboard. I have difficulty accepting that that was or is her destiny.
I note that the plaintiff's particulars of damage filed in February 2012, before the surveillance material was obtained, anticipated that the plaintiff would re-enter the workforce in a fulltime capacity 'gradually' over the next 1 ‑ 2 years. That of course was expressed as a hope while maintaining that the plaintiff's ability to be able to work in 'high pressure administrative work' had been reduced by her injuries. However, even anticipating the risk of future degenerative change, the plaintiff's legal representatives then sought a 'reasonable allowance for future loss of earning capacity in the sum of $150,000'. At trial, presumably on the basis that the plaintiff had not over the previous eight months increased her hours of work and gave evidence that she had in effect 'plateaued', the claim for future loss of earning became $353,000.
It has previously been observed, perhaps with a degree of understatement, that the assessment of damages for personal injuries in an action for negligence is not an exact science: Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 (Deane and Dawson JJ) (343). As the Privy Council observed in Paul v Rendell (1981) 34 ALR 569 (571):
The assessment of damages in actions for personal injuries is not a science. A judgment as to what constitutes proper compensation in money terms for pain, suffering or deprivation of amenities of life, can only be intuitive, and the assessment of future economic loss involves a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured.
In my view, given the probability of further improvement, it is not appropriate to calculate the plaintiff's future loss as a fixed percentage weekly loss rendered into a present day value of the total loss over her expected working life, whatever that may be. The application of any assessment of contingencies even within the traditionally flexible parameters is, it seems to me, problematic. As an example of why that is so, if the plaintiff were able to increase her work to six hours a day, as I readily anticipate she will within the next 12 months, at her present salary of $35 an hour calculated on the basis of a casual rate for 48 weeks and divided by 52 weeks of the year, the plaintiff's gross salary would be $969 a week. Allowing for tax, her net salary would be about $805 a week. According to the plaintiff's submissions the net weekly salary lost from Bankwest is currently $885. The net weekly loss then would be about $80. Using the multiplier of 797.7 the plaintiff's lifetime loss, if that were the average, would be $63,816, without any allowance for contingencies. Of course I must also have regard to superannuation that would be lost from any forgone income.
In my view the probability is that the plaintiff will return to full time work. She has already, on the evidence I have referred to, worked 'five or six hours' in a day. Her current employment is secure and more work is available to her. I anticipate that she will return to working on average 6 hours a day within the next 12 months and to full‑time employment within two years. I accept that there are likely to be intermittent problems during the course of her working life.
I must have regard to the chance that degenerative changes will at some point in the future produce further problems for the plaintiff. If those problems were to eventuate, then they would carry with them the potential for diminishing the plaintiff's ability to earn an income from work of the kind that she is currently doing or that she did at Bankwest.
In my view, the calculations by the plaintiff's legal representatives do not have regard to the effect of even a relatively modest increase in the plaintiff's hours of work. The calculation offered in closing submissions effectively ignores the prospect of improvement arising from the preponderance of the medical evidence.
Doing the best that I can, on all of the evidence, in my opinion a proper award to compensate the plaintiff for her future loss of earnings and loss of superannuation, taking into account the chances of future degenerative change in her neck, is $50,000.
General damages
Having regard to the serious nature of the injury that she suffered, the pain, suffering and loss of amenities of life that she has and will suffer, the plaintiff's situation represents 25% of the most severe injury. There will be an award of damages in this category in the amount of $91,000.
Gratuitous services
The parties agree that the plaintiff is entitled to assistance for the entire period that she was wearing a brace and required care at home from her parents. Thirteen weeks at 40 hours per week multiplied by the parties agreed hourly rate of $27 amounts to $14,040. The plaintiff seeks a further three hours per week from the time that the brace was removed until her return to work to allow for the services of her mother in driving her to various appointments. With respect, given the evidence as to the plaintiff's recovery of her ability to drive and her ability otherwise to deal with activities of daily living, that is excessive. The defendant submits that a further $5,000 to cover any additional services provided by the plaintiff's mother, together with interest from 1 January 2009 will provide fair compensation. I agree. The defendant very reasonably rounds the sum to $20,000, with interest from 1 January 2009. Having regard to the rounding up of the figure to $20,000, I will allow interest at 6% from 1 January 2009 to the date of trial, the sum of $4,629. The total then is $24,629.50.
Disbursements and special damages
The parties have agreed special damages in the following amounts:
•Past medical treatment expenses paid
by the Insurance Commission of Western Australia $41,243.45
•Travel expenses $ 2,500.00
•Amount owing to Medicare $ 3,420.00
•Future treatment expenses $ 5,000.00
•Plaintiff's out of pocket expenses $ 1,810.43
Total: $53,973.88
Conclusion
For the reasons set out above there will be judgment for the plaintiff. I find there was no contributory negligence. I will allow damages as follows:
•Past loss of earning capacity, including interest $143,011.00
•Superannuation including interest on past loss $ 16,527.00
•Lost future earning capacity $ 50,000.00
•Gratuitous services together with interest $ 24,629.00
•Non‑pecuniary loss $ 91,000.00
•Special damages $ 53,973.88
Total: $379,140.88
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