Luongo v Clarke
[2018] ACTSC 81
•29 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Luongo v Clarke |
Citation: | [2018] ACTSC 81 |
Hearing Dates: | 26 March 2018 – 29 March 2018 |
DecisionDate: | 29 March 2018 |
Before: | Elkaim J |
Decision: | (i) Judgment for the plaintiff in the sum of $119,059.80. (ii) Subject to further order, the defendant is to pay the plaintiff’s costs of the proceedings. |
Catchwords: | TORTS – NEGLIGENCE – Contributory Negligence – Damages – whether the defendant breached his duty of care – nature and extent of injury – calculation of damages |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) Court Procedures Rules 2006 (ACT) r 1725 |
| Cases Cited: | Reece v Reece [1994] NSWCA 259 |
Parties: | Giuseppina Luongo (Plaintiff) William Grant Clarke (Defendant) |
Representation: | Counsel Mr A Muller (Plaintiff) Mr R Gambi (Defendant) |
| Solicitors Maliganis Edwards Johnson (Plaintiff) McCabes Lawyers (Defendant) | |
File Number: | SC 140 of 2017 |
ELKAIM J:
On 7 May 2014, the plaintiff was walking up Red Hill Drive on her way to the Red Hill Lookout. The defendant was riding his bicycle down Red Hill Drive. The defendant collided with the plaintiff near the intersection between Red Hill Drive and Gowrie Drive. The plaintiff was injured.
The plaintiff blames the defendant for her injuries. She says that he was riding in a negligent manner. The defendant says that he was not negligent but that, if he was, so too was the plaintiff.
The plaintiff says that the injuries she suffered were significant. She has claimed damages under the following heads: general damages; past and future medical expenses; and past and future domestic assistance. The defendant does not deny that the plaintiff was injured but challenges the nature and extent of the injuries.
The Civil Law (Wrongs) Act 2002 (ACT) is relevant to liability and the assessment of damages.
Before the Accident
The plaintiff was born in Italy in 1947. She was 66 when the accident occurred. She is currently 70 years old.
The plaintiff married in 1965. She came to Australia with her husband in 1966. They have three children: two daughters and a son. The plaintiff and her husband eventually began a family business specialising in cleaning commercial premises and schools. This continued until 2007, when the plaintiff’s husband had a heart attack.
The family stayed in business but concentrated on buying houses, putting them in good order and then renting them. The plaintiff was involved in the family business and was also very active at home, both indoors and outdoors.
The plaintiff had a number of medical problems before the accident. The two of particular relevance concern her right knee and her emotional state. She had a knee replacement in November 2011 which helped, but she continued to have some problems. She was encouraged to exercise as much as possible. The plaintiff also suffered from anxiety. She found her daughter’s marital breakdown particularly difficult to deal with.
I think that the plaintiff significantly understated the extent of her right knee injury and emotional state as it existed before the accident. It is difficult to say whether she did so deliberately or whether it is a product of the emotional reaction that she has had to the accident, which she blames for most of her continuing issues. This is consistent with the opinion of Dr Machart who observed, in relation to the continuation of her physical injuries:
I suspect that this reflects psychological rather than objectively defined orthopaedic pathology (Exhibit 1, p 184).
Whatever the case, I do not accept the plaintiff’s evidence about the limited amount of medication that she took prior to the accident. In particular, she was on regular prescriptions of Lexaton to combat her anxiety and she used a good deal more of the painkiller Endone for her right knee than she admitted. I do accept, as stated by both of the plaintiff’s daughters, that the plaintiff would not take a full tablet of Lexaton. However, the medical records indicate that she regularly sought a prescription which allowed her access to a packet of 30 tablets. I do not accept that she was effectively anxiety free prior to May 2014.
I do, however, accept that the plaintiff was significantly more active prior to the accident. The reason I have reached this conclusion is mostly because I accept the evidence of her son, Mr Michael Luongo. He was asked about his mother’s difficulties prior to the accident and he said that he could not give much detail. What he did say was that his mother took sole responsibility for the house and garden work before the accident. She had very high standards and did not permit her son to assist her. She “did everything”. The son was not challenged on this point.
The same applies to the evidence of the plaintiff’s daughters. They both spoke of the very significant assistance they received from their mother before the accident and spoke of her social activity.
I will return to this point below, but note here that the plaintiff’s children were not directly challenged on the number of hours during which they assisted their mother since the accident.
On a strict reading of their evidence, there were simply too many hours spent by each of them to create a credible picture of the assistance they provided. I am satisfied, however, that the plaintiff’s children were honest witnesses and that their evidence should be seen in light of them cooperating in the care of their mother.
The Accident
The accident occurred on a weekday at about 7:30 am. There is no suggestion that any lack of lighting played a part in the accident. Both parties accepted that the roadway was used by pedestrians, cyclists and motorists. This means that both the plaintiff and the defendant would have been aware that the other party could have been travelling in the other direction as they respectively went up and down the hill.
At the request of both parties, I conducted a view of the scene of the accident. The view was useful and allowed me to make the following observations:
(a)The defendant was asked to point out the position that correlates with his position in photograph 21 in Exhibit C. The position he indicated illustrates the care which must be taken when looking at the photographs and the distances that they seem to reflect. On my observation, during the view the defendant indicated a position further up the hill, by perhaps 2 or 3 m, than might be deduced from the photograph.
(b)The defendant was also asked to indicate the position he was in when he first saw the plaintiff as he descended the hill. Following his indication, I went to that position and then continued up the hill and looked back down towards the general area of the collision. It seemed to me that the defendant would have been in a position to see the plaintiff walking up the hill some 20 m prior to the position he indicated. This is consistent with the expert reports.
(c)The other important aspect that arose from the view is the area of disrepair seen in a number of photographs, for example, in the left-hand corner of photograph 22 and on the right-hand side of photograph 25. The area in disrepair extends approximately one metre into the roadway. Further, the area to the right of a pedestrian walking up the hill (on the pedestrian’s right-hand side) does not present any obstacle to a pedestrian going to the right of the area in disrepair as opposed to necessitating the pedestrian going to the middle of the laneway in order to avoid the obstacle.
(d)Finally, my observations of the scene indicated that it would not have been practicable for a pedestrian to have walked up the hill, at least in the area of the collision and of the intersection, on the left-hand side of the road. I note here that the defendant does not assert that it was negligent of the plaintiff, in a general sense, to have walked up the hill on her right-hand side of the road.
The plaintiff walked to the Red Hill Lookout on a regular basis. She always followed the same route. She started at the Manuka Church, then went via the Italian club and the Forrest Primary School and then up the hill. She usually left shortly after 7:00 am.
The plaintiff said that she frequently saw other pedestrians while walking. She also often observed cyclists and motor vehicles. The road, especially to the extent that it went to the Federal Golf Club, was busy.
Persons on their way to the Federal Golf Club would travel up the hill and then turn right at the fork, which can be seen in photograph 21 of Exhibit C.
The plaintiff said that she always walked in the same way, that is, on the right-hand side of the road near the white line on the edge of the road. She said that she did not walk in the middle of the laneway.
Once at the top of the hill, the plaintiff would always descend along a bush track.
On the day of the accident, the plaintiff followed her normal procedure. Unfortunately, she has no memory of the accident. Her last memory is being about 10 m from Mugga Way. This is at the beginning of the ascent.
Dr Klintworth was called by the plaintiff. He has been a very frequent user of Red Hill Drive, regularly running up and down the hill. He would normally use the road from about 6.30 am. Dr Klintworth would often encounter pedestrians and cyclists. He noticed that cyclists often came down the hill at a very rapid pace and cut corners. He said that pedestrians normally walked on the very right of the roadway or on the verge to the side of the road.
Dr Klintworth was familiar with the area in disrepair near the intersection. He described it as a pothole and thought it was very deep. He said that he would run to the left of the pothole in order to avoid the uneven ground to the right. I do not think that his evidence was particularly relevant. As a jogger, he would have been more concerned to avoid uneven ground. I also note the plaintiff said that, for the benefit of her knee, she preferred to walk on uneven ground. The photographs in Exhibit C clearly indicate that there was room for a pedestrian to walk to the right of the pothole.
I note that Dr Klintworth made some observations which corroborate the general impression of the detrimental effect the accident has had on the plaintiff.
The defendant called a Mr Catt to give evidence. He is a keen cyclist who used to go up and down the road to the lookout about once a month prior to the day of the accident. He would normally do the ascent three to five times as part of a training regime.
On 7 May 2014, Mr Catt was descending from the top of the hill when, without being able to be specific, in the general area of the fork in the road he saw a pedestrian walking up the road in the middle of the lane that he was occupying. After uttering an exclamation of surprise at her presence he offered some advice, suggesting that she “get off the road”. He was then travelling at about 40 km/h. The plaintiff would no doubt have had difficulty discerning the advice but would certainly have been aware of him coming down the hill and passing her at reasonably close quarters. He said that she was about a metre to his left when he passed.
There is no doubt that the pedestrian seen by Mr Catt was the plaintiff. It is not known how long passed before the accident but it was unlikely to have been very long because when Mr Catt came back, now going up the hill, he noticed that the defendant was standing alongside the plaintiff and other persons had also gathered to provide assistance.
The significance of Mr Catt’s evidence is that the plaintiff was walking in the middle of the lane for a greater period than might have been required to simply circumnavigate the area in disrepair. Equally significant is that she was given as stark warning as one can imagine about the folly of her path.
The defendant gave evidence. He suffers from dyspraxia (of speech) but this did not render him incapable of being understood or otherwise interfere with his capacity to give his version of the accident. The defendant presented as an honest witness but there were some areas where I think the reliability of his evidence is in question. As will be seen below, there was one point about which his evidence plainly needs to be rejected.
The defendant said that he also used the trip to the lookout as part of a training regime. He was using the route about two or three times a week. He initially said the intent was to ascend as fast as possible and then come down slowly. The defendant was training for track cycling on a velodrome.
On the day of the accident the defendant was wearing a light green Lycra outfit. He was on his way down the hill, not peddling. He slowed down for the bend before the fork in the road. A useful photograph showing the bend can be found in Figure 5.3 of the Defendant’s Expert Report in Exhibit 1. At that stage, he was closer to the left of the road. As he emerged from the bend, he “looked up” and saw the plaintiff about 20 to 30 m ahead of him. She was in the middle of the laneway and walking up the hill. The defendant pointed out that the position he indicated in photograph 25 of Exhibit C is where the plaintiff landed following the collision. The point of impact had been a little further up the hill.
The defendant said that he applied his brakes and went to the left of the plaintiff in accordance with his training, which dictated that a primary consideration was not crossing to the wrong side of the road where he might encounter oncoming traffic.
As the defendant went to the left of the plaintiff, who he thought had been looking downwards, she moved to her right and the collision occurred. He thought their respective right shoulders had come into contact. The defendant came off his bicycle and fell onto the grass on the left-hand side of his direction of travel. He stood up and saw the plaintiff lying on the roadway facing down the hill.
The defendant had some basic medical training so he attempted to minister to the defendant. He took a pulse and tried to help her. Other persons gathered and he organised for emergency services to be called and traffic to be diverted.
The defendant said that he estimated that his speed when he came out of the bend was 35 to 40 km/h. This evidence was the subject of close cross-examination. The defendant said that he never exceeded 60 km/h when he came down the hill. This evidence was contradicted by Exhibit D, which indicates that on 12 March 2014, on Red Hill, the plaintiff achieved a speed of 63.7 km/h. Although he initially said that his intent was to go up the hill as quickly as possible, he ultimately agreed that he was endeavouring to achieve a maximum speed on the round trip.
I do not accept the defendant’s evidence about his speed on the day. It is not only contradicted by Exhibit D but also his record of interview with the police on the day of the accident.
Although I cannot come to any firm conclusion as to what precise speed the defendant was riding when he exited the bend, I am satisfied that it exceeded the 35 to 40 km/h about which he gave evidence. I note that, to his credit, he said that his evidence on the day of the accident would have been more reliable than it is at the present time.
Another matter where the defendant’s reliability is in question concerns the distance at which the plaintiff was ahead of him when he first saw her. He said in evidence before me that it was about 20 to 30 m. The Questions and Answers in Exhibit E paint a very different picture, particularly on pages seven, eight, nine and 10. If I have understood these Questions and Answers correctly, the final position is that the rough estimate of the distance was about 10 m.
The experts calculated the distance of the line of sight from the bend to the area of the accident at about 50 to 60 m. Against this background, the defendant seeing the plaintiff 10 m ahead of him indicates a significant failure to keep a proper lookout. The same conclusion, but to a lesser degree, also arises if the distance was 20 to 30 m.
In his oral evidence the defendant’s expert said that it was not an open conclusion to say that if there was a line of sight of say 60 m and the defendant saw the plaintiff at a distance of 30 m, then he had not seen her for the first 30 m. This was because of the necessary processing time between the vision of the plaintiff first being registered on the defendant’s retina and reaching the brain.
The expert’s point is obviously valid but must be understood against the background of a person stating when he saw the pedestrian. The instant of ‘seeing’ must reflect the registration of the vision in the brain. A person could not know when the vision first struck his retina. In my view, therefore, whether the defendant was 30 m or 10 m away from the plaintiff when he first saw her, he must have had a significant opportunity before that time to have observed her down the road.
There was one issue on which I think the defendant may have unjustly put his own case to the fore. He said that, in his experience, pedestrians “rarely” went up and down the hill. This is entirely contrary to the balance of the evidence and I reject his assessment.
After the Accident
After the accident, the plaintiff was taken by ambulance to hospital, where she remained for about a week. She suffered fractures to her face and injuries to her neck and left shoulder. Her right knee was made worse than prior to the accident. As time progressed, she developed a significantly heightened state of anxiety.
In more detail, the plaintiff’s specific injuries were as follows:
(a)A minimally displaced comminuted fracture of the nasal bones;
(b)A displaced commuted fracture within the right shoulder;
(c)Significant facial bruising;
(d)Undisplaced fractures in the jaw;
(e)A rib fracture;
(f)A soft tissue neck injury;
(g)Aggravation of her right knee condition; and
(h)Aggravation of her anxiety state.
The plaintiff underwent shoulder surgery on 23 July 2014. A portion of her clavicle was excised and the instability of her left acromio-clavicular joint was addressed by the insertion of a metallic device.
The shoulder operation led to some improvement which seems to have continued, although movement of the plaintiff’s left arm is restricted. It was put to her that she had effectively exaggerated the extent of her disability to medical practitioners, but I am not satisfied that is the case.
It is apparent that the plaintiff is now far more active than she was before the shoulder operation. She also said that her right knee had improved and I gathered it was not a very significant problem, although she said she relied on a good deal of pain medication.
The plaintiff initially had breathing problems following the accident but these improved after a nasal operation on 10 December 2014.
The plaintiff’s anxiety has continued but this has been influenced by another major medical event. In 2016, she was diagnosed with Stage III breast cancer. Two malignant tumours were removed and she received radiation therapy. The possible return of cancer is under close observation but the diagnosis has clearly had a significant effect on her emotional state. She said she was “very scared” of the cancer returning, to the extent that she had considered suicide.
More generally, in relation to her anxiety state, the plaintiff said that she went to church less often, went out less often and socialised a good deal less. The plaintiff’s pre-accident condition, taken with the added stress resulting from the cancer diagnosis, led me to the conclusion that her current level of anxiety is not entirely due to the accident but rather that the accident plays an aggravating part in it.
The plaintiff’s son and daughters gave evidence about her increased levels of anxiety and I accept that evidence. However, it must be seen against the background of the plaintiff already being anxious and of the very large influence imposed by the cancer diagnosis and her overwhelming fear of the return of this disease.
Liability
Both sides tendered Expert Liability Reports. Both reports contain useful diagrams, calculations and photographs. I did not otherwise find them to be of much assistance. Both experts were hampered by not being able to estimate the speed of the cyclist, which in turn led to a degree of speculation as to how the accident occurred and whether or not it might have been avoided.
Perhaps unintentionally, or even coincidently, Mr Johnstone was ultimately correct when he said that the pedestrian was the “primary cause” of the accident. If he used the word “primary” to indicate that both parties were at fault, but there was a greater fault on the part of the plaintiff, then I agree with him. If his intention was to say that the accident was entirely the fault of the pedestrian, then I disagree with him.
I think that the examination of liability revolves around three questions. The first is whether the defendant should have seen the plaintiff, assuming he was keeping a proper lookout, earlier than he did. It is also necessary to consider whether, if the defendant saw her before he says he did, this would have made any difference. The second question is what the plaintiff’s speed was as he descended, in particular after the final bend before the accident site. The third question is whether or not the very immediate pre-accident actions of the parties are relevant to any finding of negligence. In other words, was it negligent of the cyclist to attempt to go around the plaintiff by steering to the left? In addition, was it negligent of the plaintiff to move to her right once she saw the cyclist rapidly approaching her?
Both the cyclist and the pedestrian were aware, or should have been aware, that the roadway was used by other persons, including other cyclists and pedestrians. They should have both been alert to the possibility of each other’s presence.
This is probably more so on the part of the pedestrian who, only a very short time before, had a close call with a cyclist when she was walking up the hill on the right-hand side of the roadway. I do accept that the left-hand side, as already stated, was not available to her but nevertheless, being on the right-hand side, she would have been aware that she was walking in an area that could potentially be occupied by an oncoming vehicle, be it cyclist or motor vehicle.
When the last point is added to the pedestrian being in the middle of the right-hand lane, or at least not on its very edge, the responsibility of the plaintiff to be aware of oncoming traffic, and in fact to be on the very edge of the road, would have been significant.
The plaintiff submitted that she probably was not in the middle of the laneway because this was not consistent with Mr Catt’s evidence that when he passed her there was about 1 m between him and the centre-line. I do not accept this submission. Mr Catt was giving a rough estimate at best. More importantly, both his evidence and that of the defendant was that the plaintiff was in the middle of the laneway. This is not of course any measurement of precision but it indicates the general area where the plaintiff was and obviously should not have been.
It is not known why the plaintiff was not on the edge of the road, where she normally walked. If it was because she was circumnavigating the area in disrepair, then she had the option of walking off the roadway surface to the right of that area. Having regard to the evidence of Mr Catt, I think the presence of the pothole may be something of a ‘red herring’. I think that the plaintiff had been walking in the middle of the lane, for whatever reason, for a greater distance than might have been demanded by avoiding the pothole. This was a negligent and dangerous enterprise on her behalf. I think her path of travel dictates that her contributory negligence must be greater than 50%.
In relation to the events immediately before the accident, I do not see any negligence in the plaintiff turning back towards the right edge of the roadway. This would have been a natural escape route. It could not have been expected of her that she would have had time to assess the best path to take, including perhaps even standing still.
Similarly, I do not think the defendant was negligent in veering, as he was descending, to the left of the plaintiff. His training was to the effect that he should go to the left because the right was a very dangerous place having regard to the possibility of vehicles travelling in the opposite direction. I think the decision he made in that instant does not bespeak negligence.
I do, however, think the defendant was negligent in not seeing the plaintiff at an earlier stage. A bicycle, especially at speed, is a vehicle which is difficult to control. Even a formal application of brakes will not necessarily enable the bicycle to be brought to a safe halt, especially on a bend. The knowledge of pedestrians on the roadway should have led the defendant to be hypervigilant as he descended, especially at the speed he was travelling. In my view, he should have seen the plaintiff up to some 20 m before he did. This would have given him the added opportunity to slow down or take, with more time for consideration, other evasive action.
Both experts agreed that the line of sight that was available to the defendant as he emerged from the corner to the general area where the plaintiff was probably walking was about 50 to 60 m. Even accepting the distance was 50 m, the defendant should have seen the plaintiff significantly earlier than he did.
Without knowledge of the plaintiff’s speed, it cannot be said that had he seen the plaintiff earlier than he did, he could have avoided the accident by bringing his bicycle to a stop. It is possible that he could have, but it is more probable that he could have slowed to such an extent that the collision would have been significantly less severe than it was, or perhaps he could even have avoided the collision.
The plaintiff must, however, bear the brunt of the blame for the accident. While the reason is unknown, the fact is that she was walking into the face of traffic, knowing there was traffic, knowing that there were cyclists descending the road at speed and, for whatever reason, being in the middle of the laneway. In addition, she had the warning from Mr Catt passing her that she was in a precarious position. If she was in the middle of the laneway because of the unrepaired section of roadway, which is probably not the case, that does not particularly assist her because she could easily have gone to the right of that section. She said it was a fine day and, on such days, any dangers on the ground were plainly visible.
I have already said that contributory negligence should be more than 50%. I think the appropriate percentage is 70%.
Damages
The medical dispute between the parties is not great. There is little doubt about the frank injuries the plaintiff suffered or that she would have experienced a significant degree of pain and suffering following the accident. The pain and suffering is likely to continue, especially in relation to her shoulder and perhaps the neck, for the rest of her life. She has a life expectancy in the order of 18 years. There is no evidence about the possibility of her cancer returning, nor of the extent to which her life expectancy might be shortened. However, it must be recognised that the plaintiff’s age must have an impact on her general damages (Reece v Reece [1994] NSWCA 259). Her pain, suffering and disability should therefore be assessed on the basis that it will continue for a number of years into the future.
The defendant has not tendered a report from a psychologist or psychiatrist. Nevertheless, I have already expressed a view regarding the plaintiff’s anxiety state. I do note that the plaintiff is still consulting a Ms Papantoniou. Unfortunately, there is no up-to-date report from her, although I do have the benefit of her clinical notes. These notes, which commence at page 750 of Exhibit A, support the conclusion that the accident is very relevant to the plaintiff’s anxiety state but that there are also a number of other contributing factors.
There is a more up-to-date report from Mr Sutton, dated 20 March 2018. The report suggests that “a necessary cause of [the plaintiff’s] current psychological conditions” is the accident in 2014. While I do agree that the accident is a cause, it is plainly not the only cause.
A recent report from an orthopaedic surgeon (Exhibit A, page 906), Dr Higgs, describes the injury to the left shoulder as “severe”, that the plaintiff suffered a soft tissue injury to her neck and a “very mild symptomatic aggravation” of her right knee condition. In relation to the neck, the doctor says that a part of the plaintiff’s continuing problems are due to an “age caused degenerative cervical spinal pathology.”
Dr Machart, who I have already referred to, saw the plaintiff in February of this year (Exhibit 1, p 177). There is very little difference between his opinion and that of Dr Higgs.
Both sides rely on the report of an occupational therapist.
The plaintiff suggested $120,000 for general damages. The defendant submitted that $100,000 was appropriate. I think that both figures establish an appropriate range for general damages. I think that justice between the parties is served by an award of $110,000.
Interest on half this figure at the agreed rate is $4,290.
The submissions on past medical expenses were separated by $2,500. The defendant, fairly, made no submissions to the effect that I should not accept the plaintiff’s figure. Accordingly, I allow $47,500 for past out of pocket expenses, inclusive of interest.
Future medical expenses were agreed at $40,500. I note that the defendant’s agreement took into account that the figure includes an allowance for future equipment.
In relation to past domestic assistance, as I noted above, the evidence of the plaintiff’s son, Mr Michael Luongo, was not challenged as to the extent of the assistance he provided. There was obviously a significant degree of duplication in the evidence of the plaintiff’s three children. This is recognised in the submissions on damages, which allow for significantly less hours than a mathematical addition of the evidence would have produced.
There was substantial agreement between the parties concerning past domestic assistance. The difference between them concerned the first 12 months after the accident. In respect of the first 12 months, the parties agreed on a figure of $45,500. Thereafter, the plaintiff said the next 2.9 years should be at 10 hours per week. The defendant suggested 6 hours per week.
As already mentioned, the times provided by the plaintiff’s children simply cannot be added up. In addition, there have plainly been other factors that have influenced the provision of domestic assistance. Some of the plaintiff’s reasons for not being able to do the work arise from the condition of her right knee and, more importantly, are consequent upon her state of mind, including the influence of her cancer diagnosis. Once again, I think splitting the difference between the parties is appropriate and I will allow 8 hours per week. The calculation is, therefore, 150.8 weeks x 8 hours per week x $35 per hour = $42,224. When added to $45,500, the result is $87,724.
Interest on past domestic assistance for 3.9 years at 3.5% is $11,974.
For the future, the plaintiff’s claim is for 10 years at 10 hours per week. The defendant’s submission is 3.75 hours per week, but there is agreement that the period should be 10 years. The plaintiff’s approach is based on there being no improvement in her condition. I have already assessed the past domestic assistance on the basis of 8 hours per week. If there was no improvement in her condition, this amount of assistance would be appropriate. However, I think that, as the past two years or so have shown, there has been some improvement in the plaintiff’s capacity to do the domestic work and I think it is likely to continue. For this reason, I will allow 6 hours per week. The calculation on the 3% tables is 451.8 x 35 x 6 = $94,878.
A summary of the damages I have awarded is as follows:
General Damages $110,000.00 Interest on General Damages $4,290.00 Past medical expenses $47,500.00 Future medical expenses $40,500.00 Past domestic assistance $87,724.00 Interest on past domestic assistance $11,974.00 Future domestic assistance $94,878.00 Total $396,866.00
When reduced by 70% for the contributory negligence, the result is $119,059.80.
In the normal course, costs would follow the event. However, by reason of r 1725 of the Court Procedures Rules 2006 (ACT), the plaintiff’s costs would normally be reduced. The rule does, however, allow for a discretion which, in my view, should be exercised in the plaintiff’s favour. This is because the full value of the case, before the reduction is made for contributory negligence, would have entitled the plaintiff to a normal costs order.
Contributory negligence was a hard fought and real issue in this matter, which was ultimately decided on the whole of the evidence. My findings, as discussion during the case would illustrate, could have been different. My preliminary view is that the case was appropriately brought in the Supreme Court. I will, however, hear any submissions for a different costs order.
I make the following orders:
(a)Judgment for the plaintiff in the sum of $119,059.80.
(b)Subject to further order, the defendant is to pay the plaintiff’s costs of the proceedings.
I will hear the parties on any other costs order that is sought.
| I certify that the preceding eighty-eight [88] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 29 March 2018 |