MacNAMARA v Matton
[2000] QDC 16
•11 February 2000
DISTRICT COURT OF QUEENSLAND
CITATION: MacNAMARA v. MATTON AND ANOR [2000] QDC 016 PARTIES: BRIAN PATRICK MacNAMARA (plaintiff)
v.
FRANCIS COLIN MATTON & RAYMOND JAMES MATTON trading under the firm name of MATTONS LIVESTOCK TRANSPORT (first defendants)
&
THE NOMINAL DEFENDANT (second defendant)FILE NO/S: Plaint No 1 of 1996 DIVISION: PROCEEDING: Trial ORIGINATING COURT: District Court Mackay DELIVERED ON: 11 February 2000 DELIVERED AT: BRISBANE HEARING DATE: 7, 8, 9, 10 June; 6, 7, July 1999 JUDGE: McGILL D.C.J. ORDER: Judgment for the plaintiff against the first defendant for $191,765 and against the second defendant for $196,312 CATCHWORDS: EMPLOYMENT – injury of employee – liability of employer – truck driver – whether vehicle defective
DAMAGES – personal injury – neck – 10% rising to 15% - what other injuries caused by accident – scarring – pain and suffering $42,500COUNSEL: R.W. Morgan for plaintiff
P.O. Land for defendantsSOLICITORS: Mackays for plaintiff
Clayton Utz for defendants
By this action the plaintiff claims damages for injuries he suffered on 12 February 1993 when a semi-trailer he was driving down the Eton Range in the course of his employment by the first defendant ran off the road and overturned. Liability and quantum are both in issue. The plaintiff’s case was originally pleaded in negligence and for breach of s.20 of the Motor Vehicles Safety Act 1980, but at the beginning of the trial I allowed the plaint to be amended to add alternative claims for damages of breach of contract, and for breach of statutory duty, being that imposed by s.9 of the Workplace Health and Safety Act 1989. The plaintiff alleges that essentially the same facts give rise to liability on each of these separate bases. In addition, it is alleged that an unidentified motor vehicle obstructed a safety ramp located part of the way down the Eton Range, which the plaintiff could otherwise have used to stop the semi-trailer safely, and that on this basis the second defendant is liable in negligence. The first named first defendant died before the trial; on 6 July 1999 I ordered that the action proceed against the surviving partner, Raymond James Matton: p.445.
The essential issue in relation to liability is a dispute as to why the accident happened; the plaintiff’s allegation is that the brakes on the truck were defective and insufficient to prevent it from running away when descending this hill fully laden. The defendants allege that there was nothing wrong with the truck which would have caused this accident, and that it was caused by the plaintiff’s bad driving. The defendants’ case is that when the plaintiff was most of the way down the hill he ceased to apply the brakes, and instead accelerated, with the result that he was travelling too fast to take the last corner, and this accelerating away is alleged to have occurred after the safety ramp so that any obstruction of it was irrelevant.
The plaintiff was alone in the truck at the time, and gave evidence of how he drove down the range. There was also evidence from the driver of a vehicle which was following the plaintiff part of the way down the range, and the driver of a vehicle going up the range. There were also some photographs taken after the accident, and some evidence about the condition of the truck, both before and after the accident, although it does not appear that after the accident there was any thorough investigation of the physical condition of the truck. I also had the benefit of some expert evidence, and some evidence from other truck drivers.
The Truck
The truck consisted of a Mack 500 Superliner prime mover registered number 161-AGJ and one cattle trailer which was laden with 36 beasts: p.44. There was some conflict as to the total weight of the vehicle, which depends a good deal on the weight of the cattle, and I shall deal with that issue separately. The truck had 12 forward gears, although ordinarily 10 were used: p.47. The gear lever selected five forward gears, and in addition a switch could for each gear select two different ratios, a direct position and a high position. In the gearbox the lowest gear was first direct, then first high, then second direct, and so on: p.48.
The truck was fitted with two separate braking systems, air brakes and an engine brake. The air brakes operated on the wheels of the prime mover and the trailer, and included a fail safe emergency brake, where the brakes were actually applied by springs, and required the compressed air for release. The ordinary or service brake system used compressed air directly; pressing the brake pedal effects a measured increase in the pressure tending to apply the brakes. There is also an emergency brake held off by air pressure, which could be released quickly with the result that the brakes would be applied heavily by springs. Both use the same brake shoes. Because of the way the system is designed, defects should make it difficult to release the brakes rather than making it difficult to apply them. Air brakes are efficient but do have one drawback for a vehicle of this size and weight; the brake shoes can overheat, and if so they lose their braking effectiveness, and provide less retardation so that the vehicle can run away, even though the brakes may be fully applied.
The engine brake operates by using the vehicle engine as a compressor. It is activated by a switch on the dashboard: p.56. The term “dynatard” was also used at times to refer to the engine brake: p.57. A diesel engine in ordinary operation compresses air in each cylinder until it is hot enough to ignite a measured amount of diesel fuel injected at high pressure. This burns explosively and provides the power stroke against the piston, after which the hot gas is exhausted. In normal operation part of the power generated during the power stroke is used elsewhere in the engine for compressing air; the remainder is available to drive the truck. However, if the engine is used without a power stroke, and if the air after being compressed is released from the cylinder, the engine can act as an air compressor driven by the drive shaft of the vehicle, and in that way absorb power transmitted from the road through the drive wheels of the prime mover to the drive shaft. The engine can therefore be used to apply a significant retarding effect, which has the advantage that it is not adversely affected by overheating, and the retarding effect will be broadly proportional to the speed of the vehicle so that on a particular hill, for a particular vehicle with a particular load, and with the vehicle in a an appropriate gear, the engine brake should maintain an equilibrium speed. Poor maintenance will reduce the effectiveness of an engine brake, in various ways. If the brake cannot hold the load the engine speed will increase to a point where components are damaged and the engine will fail: Exhibit 34, p.12.
The Hill
The Peak Downs Highway descends the Eton Range between Nebo and Mackay at a slope called Eton Hill. The descent is just under 1½ kilometres in length and involves two hairpin bends, and some other more gentle curves: Exhibit 19. From the top of the range there is a curve to the right followed by a curve to the left, and on this curve the safety ramp runs off to the right into the hill. There is then a long gentle curve to the right which ultimately sharpens into one of the hair pins, then after some further gentle curving to the right and to the left, and a slightly sharper curve to the left, the second hairpin is reached near the foot of the range. It was at this second hairpin that the accident happened. A diagram of the road is Exhibit 19, there is a video tape showing a driver’s eye view of the descent (Exhibit 15) and I have various photographs taken on the road either just after the accident (Exhibits 38-40) and more recently (Exhibits 14, 20). The plaintiff had frequently brought a truck down this hill previously: p.39, 85.
The Journey
The plaintiff had worked for some time for the first defendant who operated a small fleet of road transport vehicles (p.248), and ordinarily drove a different but similar prime mover (p.45), although he had had some experience with the relevant prime mover: p.85. For this particular journey, he left the defendant’s Sarina depot at about midnight on 10 February, driving the prime mover and trailer, and went to the Sarina road train pad where he connected a second trailer. He drove to Wentworth Station, stopping on the way for a rest. He arrived at Wentworth at about 8 a.m., where he loaded cattle into both trailers: p.40. There were three other drivers at Wentworth Station also loading cattle: p.41. While at Wentworth Station he had problems with a wheel bearing on the dolly, the device used to connect the second trailer behind the first, and he also had some difficulty with air leaking out of the braking system: p.41. The problem was in the area shown in Exhibit 12. The plaintiff replaced a loose circlip which held in a part of the equipment which had been allowing air to escape: p.42. That such a fault would produce an air leak was confirmed by Mr. McDougall: p.415. That the plaintiff complained of brake trouble there was confirmed by Mr. Bloxsidge: p.127. The relevant part was concerned with the brakes for the trailer: p.246.
After loading the plaintiff proceeded to Tierawoomba Station where he unloaded the cattle late in the afternoon, then drove to the Nebo Roadhouse where he had an evening meal (p.43) and a few hours sleep, and where the plaintiff left the second trailer before he and another driver proceeding to Denham Park Station where he loaded his remaining trailer with 36 bullocks: p.44. These had to be taken to a meatworks at the coast (p.206), which involved the descent of the Eton Range.
The Descent of the Range
The plaintiff said that he began the descent with the truck in second gear with the high ratio selected, which is how he ordinarily drove such a truck down that hill: p.53. He denied he attempted to change gear on the hill: p.58. The plaintiff was not able to say just what his speed was at any particular point, because the speedometer in the vehicle was not operating: p.56. He had used the engine brake to reduce speed when it was approaching the top of the hill (p.56), turned it off for a short time, and then turned it on again just as he went over the crest of the hill: p.97. The plaintiff said that at one point where the grade became a little steeper he touched the air brakes and he then heard air leaking out pretty badly. The air brake buttons on the dash popped out, which he understood meant that he had lost his air brakes, that is lost the compressed air in the braking system, but the semi trailer did not stop: p.54, 57. It continued down the hill, initially in a fairly controlled way, although with the speed slowly increasing.
The plaintiff said that as far as he was concerned there was nothing else he could do to keep the speed down; the engine brake was applied, and he assumed from the fact that the buttons had popped out that he had lost the air in the air brakes, so that they ought to have been fully applied also, but were ineffective. The plaintiff said that he was not too worried at that stage, as he knew there was a safety ramp, but as he came round the corner there was a white car parked in a position where it obstructed his entry to the ramp: p.54, 59. He had to go on down the hill.
The plaintiff said that by the time the truck was past the first tight curves the engine was revving far too much, and subsequently it let go in the gear box or the clutch or somewhere: p.60. The plaintiff denied that he deliberately accelerated or permitted his vehicle to speed up before it came to the last bend, and denied that the reason the truck came to grief was because he chose to go round the last bend too quickly: p.210. As it came to the last bend it was on the wrong side of the road, it started to lift, he lay down in the cab and the truck rolled over the bank at the edge of the road over the guard rail.
During its descent of the hill the plaintiff was also seen briefly by Mr. Robke, who was driving up the hill in a truck taking a load of pipes to his father’s property: p.78. He crossed the plaintiff’s vehicle at a point after it had passed the safety ramp, at the point marked in blue on Exhibit 19, p.80. He said he waved to the driver but the driver did not wave back. He also said when he came to the safety ramp there was a white car parked in the safety ramp facing uphill: p.79. He said that the semi-trailer was going much faster than other similar vehicles on that hill, which attracted his attention: p.79. He was thoroughly familiar with that road: p.78. He did not recall seeing any other vehicle behind the semi-trailer: p.82.
Mr. Downes gave evidence that he followed the plaintiff’s vehicle down Eton Hill, having caught up with it as he got to the top of the range: p.363. He said the vehicle was going very slowly, less than 20 kilometres per hour down the hill (p.364), and did not appear to speed up or have any difficulty, and stayed on his correct side of the road, until it was after the hairpin bend. He said that when the vehicle got to about the point marked in red on Exhibit 19 (p.375) it pulled away from him and he saw exhaust smoke coming from the engine: p.366. As he put it, the truck “just took off” (p.367) and he did not expect the driver to be able to take the last curve. Perhaps for this reason he did not accelerate himself and the truck went out of his sight, until he came upon it later after the accident: p.368. When he did he could see the wheels on the trailer still spinning. He stopped and gave assistance. He did not recall whether the brake lights on the truck were lit (p.272), nor whether the tyre marks visible in photographs in Exhibit 40 were left by this vehicle on this occasion: p.381. An account given by him to an investigator on 22 July 1998 was also put in evidence: Exhibit 42. It is consistent with his oral evidence; in the statement he says he cannot recall any vehicle blocking access to the safety ramp.
At some stage the plaintiff was interviewed by an investigating police officer, who now cannot recall whether he spoke to the plaintiff at the scene or later: p.306. In view of the plaintiff’s injuries and the circumstances, he may well not have been able to give a good account of himself while still at the scene. The plaintiff thought he spoke to him at the hospital later. That account is set out in a copy of the report which became Exhibit 36, and is essentially consistent with the plaintiff’s evidence except that it does not refer to some incident after the first tight corner when something in the gear box jumped out so that the benefit of the engine brake was lost. A sketch that the officer prepared shows a skid mark for 30 metres leading up to the guard rail (Exhibit 36), and this is also visible in one of the photographs, Exhibit 39.
The Weight of the Vehicle
The further amended plaint alleged that the total weight of the prime mover and the trailer when loaded was approximately 63 tonnes, whereas the maximum safe vehicle mass for a prime mover and load was 42.5 tonnes. The figure of 63 tonnes depends on an estimate given by Mr. MacNamara of the weight of the cattle as being 800 to 1000 kilograms each: p.44. Various other estimates were given by witnesses of a typical weight of a bullock, but perhaps the most useful information about the weight of the animals comes from the meatworks records for such of them as were ultimately delivered to the meatworks and slaughtered. The livestock manager of the meatworks, Mr. Smith, produced a copy of the document which recorded the price paid for those cattle that were slaughtered: Exhibit 33. Only nine of the 36 beasts were delivered to the meatworks, on 15 February 1993: p.260. Presumably the rest either perished in the accident, or escaped into the bush. The total processed weight of these nine came to 2,619.5 kilograms, and by calculation it is possible to determine that the heaviest weighed 365 kilograms. The cattle were quite heavily bruised, consistent with their having been in a rollover (p.262) although four of the nine were shown as having no bruising: Exhibit 33. This complicates the application of the figures, because the dressed weight is arrived at after trimming off any bruising: p.262.
Dressed weight is approximately 50% to 56% of live weight (p.262) so that if it is known that no bruised meat has been trimmed off a particular carcass, the live weight can be estimated by doubling the dressed weight, but that does not assist in determining which four of these nine weights represent half the live weight. However, it would be unsurprising if they were the heavier rather than lighter weights, subject to the consideration that the two lightest carcasses were from the two bulls, and that may just be because bulls are lighter. However, dressed weight of the four heaviest carcasses came to 1,333.5 kilograms and if they were the four which did not have any bruising, those animals had an average live weight of 667 kilograms. It is possible that one or more of the heaviest animals were partly bruised, so that the live weight of them was actually greater, but if that was so, one or more of the smaller animals would have been unbruised and that would pull down the average. There is no particular reason to assume that these four were not typical in terms of weight, and I suspect that this provides a more reliable indication of the weight of the load than the various rough estimates given by the witnesses. If the thirty six animals loaded had the same average weight, this suggests a total weight for the load of about 24 tonnes.
According to Mr. McDougall the weight of the prime mover would be less than 13 tonnes, and the weight of the cattle trailer would be no more than 15 tonnes: p.401. It is not clear whether this makes allowance for four spare tyres which would have weighed a further .6 of a tonne, but on the other hand the truck would not have had a full load of fuel. These calculations suggest that the weight of the loaded semi-trailer did not exceed 52 tonnes, and may well have been less, perhaps significantly less if the weight of the bruised meat cut off the other five carcasses was not all that great. I am not prepared to find a weight of 63 tonnes or anything like that, and if it was necessary for me to make a finding I would settle on 50 tonnes. This was also Mr. Matton’s estimate of a heavily laden cattle semi-trailer: p.250.
Other Truck Drivers
There was evidence from Mr. Bloxsidge, who had almost 20 years experience as a truck driver, for eight or nine of which he was concentrating on hauling livestock, making regular trips down Eton Range: p.124. He had also worked for the defendant at one stage some years ago: p.123. He said that in the light of his experience descending the Eton Range with a Mack Superliner with a loaded double decker cattle trailer he would use second direct or second high gear, depending on the number of cattle he had on, and in that gear he would be able to control the load with the engine brake with some support at times with the air brakes: p.129. He said that the descent would be made quite slowly, probably 20 kilometres per hour or less, although he had never actually tested the speed: p.130. His estimate of the weight of the prime mover was 10 to 11 tonnes, depending on how much fuel it had (p.125) and the tare weight of the Cattleking double deck cattle trailer at 16 tonnes: p.126. He said larger cattle could have a weight up to 800 to 850 kilograms, with four year old scrub bullocks weighing about 650 kilograms: p.127. He was the driver who helped the plaintiff with the problem that he had with his bearing at Wentworth Station, and he recalled on that day the plaintiff had made mention of some trouble with his brakes: p.127.
Another experienced truck driver, Mr. Tilney gave evidence that it would be appropriate to descend the Eton Range with a loaded semi-trailer of cattle in second gear using the engine brake: p.152. He thought that the weight of the Mack prime mover was about 13 or 14 tonnes tare and that a Cattleking trailer had a tare weight of about 14 tonnes: p.153. He estimated the weight of large bullocks up to 800 or 900 kilograms: p.154. He had for a time worked for the defendant and was critical of the way maintenance work was done, without any preventative maintenance and with minor work being done by the drivers as and when they had time, although he said that they never really had time to do the work properly: p.151.
The Defect Notice
There was evidence that the relevant prime mover and trailer were subject to an inspection and brake test by the Transport Department on 3 February 1993 as a result of which a defect notice was issued, a copy of which became Exhibit 11. The notice was issued by a senior transport inspector, Mr. Ellis, at the Mackay office: p.197. This was after a test which included testing the brakes of the vehicle using a machine which would detect some inconsistency between the left and right wheels, or if the brakes are not reaching a required level. A vehicle would also fail a brake test if it was suffering an air leak. If a problem emerged with the brakes, the form was noted “Make brakes efficient”, as is Exhibit 11. That term does not identify the particular problem detected with the brakes on this truck, and Mr. Ellis could not recall what it was: p.199. The test was for the efficiency of the air brakes, not the engine brake, which was not tested: p.199. The cause of the deficiency could be a range of problems, and might require no more than simple adjustment to rectify: p.200. Mr. Ellis said that typically about one in ten of the prime movers tested showed up with brake problems sufficient to require the issuing of such a notice, and that if vehicles were maintained correctly such a notice would not have to be issued: p.201.
The defect notice was given to the usual driver of that prime mover, Mr. Storey (p.166), who said that when he received the notice it had a printout from the testing machine attached to it: p.167. He said that he gave the defect notice to the first defendant but did not recall any particular response from the first defendant when he did so, and did not think the first defendant gave him any instructions to do anything in relation to the matters in the defect notice: p.168. The defendant admitted he received the notice (p.273) and he checked and found the brakes needed adjusting (Exhibit 22) and said he told Mr. Storey to adjust the brakes: p.275. Mr. Storey said that it would not have been a difficult task to adjust the brakes, it was something he could have done in about 10 minutes: p.168. He agreed that between the time when the notice was issued and the date of the accident he had used this truck himself on occasion, including trips coming down the Eton Range or the Sarina Range with loaded double deck cattle trailers and had not had any problems with the brakes while doing so: p.170. Mr. Storey however did not claim to have any good recollection of that period: p.169. The defendant said that brakes could require adjusting every two weeks: p.316.
Expert Evidence
The plaintiff called expert evidence from a Mr. Chaseling, a mechanical engineer with particular expertise in the investigation of mechanical failure in road vehicles, including a study of road trains, particularly those carrying cattle. Mr. Chaseling based his opinion on an estimate that the all up load of the vehicle at the time of the accident was the order of 63 tonnes, the one provided to him, and expressed the view that such a load was substantially more than the design load for the vehicle and would place a greater strain on the braking systems. This would mean that it would be more difficult to retard the vehicle coming down the range because of the greater load, which could have been difficult to control if the vehicle was not properly maintained. Mr. Chaseling does support the view that increased engine speed could ultimately result in the transmission disengaging: p.187, and see p.399. He suggested that the difficulty may have been that the gear selected by the plaintiff, although appropriate with his usual prime mover, was not appropriate for this particular vehicle, so that he found himself going down the hill in too high a gear, and had to resort to the air brakes which then failed on him. I can see the sense in this hypothesis, although there is the difficulty that the usual driver of the vehicle, Mr. Storey, was called by the plaintiff but did not give evidence as to the gear in which he would ordinarily descend the Eton Range with that vehicle when carrying a loaded cattle trailer. It may be that he would no longer be able to recall if it had been at the time necessary to use a lower gear for that vehicle, but he did not say as much in the witness box, and I am really being asked to accept a speculative theory in the face of an unexplained failure to call evidence which was apparently available to support it. Besides, Mr. Chaseling himself gave the opinion that the appropriate course for a driver who finds during the descent that he has selected too high a gear is to bring his truck to a stop using the air brakes, and then select a lower gear: Exhibit 9.
The defendants led expert evidence from a Mr. McDougall, a mechanical engineer with particular experience in the fields of motor vehicle safety and occupational safety. Mr. McDougall said that if the speed of an engine becomes too high when it is being used as an engine brake, damage will occur: Exhibit 34, p.12. In Mr. McDougall’s opinion, given the slope of the range, the engine brake should have been sufficient even at speeds in excess of 40 kilometres per hour, although that calculation was done on the assumption of efficient operation of the engine brake, and that the vehicle was at 42.5 tonnes: Exhibit 34. In Mr. McDougall’s opinion, the highest appropriate gear for descent of the steeper slope of the Eton Range was third gear in high ratio, although that assumes a vehicle weighing not above 42.5 tonnes. Nevertheless, this is comfortably above the gear the plaintiff said he was using. Mr. McDougall calculated that a rollover threshold for the vehicle in the curve on which the accident occurred would have been in the order of 40 kilometres per hour: Exhibit 34, p.18. In view of the tyre mark I suspect that it is likely that the vehicle did not come close to taking the curve, and that its speed was probably well above this. That would be consistent with the other evidence.
Mr. McDougall also expressed the opinion that the absence of engine damage consistent with overspeed while the engine brake was applied supported the conclusion that the transmission was either out of gear or in a gear higher than third high: Exhibit 34, p.19. There is no reason to think that the plaintiff would have elected to make the initial descent of the hill in a gear higher than third high, so this opinion supports the view that at some point before the engine suffered detectable damage the transmission disengaged, either because the plaintiff tried to change gears, or because the transmission failed in some way as a result of the excessive pressure placed on it. This outcome would however also be consistent with the plaintiff’s having decided at the point indicated in the evidence of Mr. Downes to switch off the engine brake and accelerate.
Mr. McDougall posed three hypotheses to explain the accident: Exhibit 34, p.20-21. The first hypothesis assumes that the engine brake was not being used effectively, but seems to be rejected by Mr. McDougall on the basis that the behaviour of the vehicle was inconsistent with the assumed capacity of the air brake system to stop the vehicle. The second hypothesis was that the vehicle was essentially descending the range using the air brakes, which overheated and fade developed. However, this hypothesis does not explain a loss of control at the time of passing the safety ramp, nor does it explain the pattern of descent described by Mr. Downes, and it seems to be inconsistent with the inspection conducted by Mr. Blomley, since Mr. McDougall expressed the view that if this had occurred, evidence of the brakes overheating should have been observed. Having excluded these two hypothesis, Mr. McDougall is left with his third hypotheses, which is that the vehicle descended most of the hill in a suitable low gear, but the driver then upshifted and increased speed such that the vehicle was unable to negotiate the final bend.
After the accident the prime mover was inspected by an insurance assessor who had qualifications as an automotive engineer and diesel mechanic and many years experience in the repair industry: Exhibit 31. On the second of these inspections, on 25 February 1993, the braking system was charged with air, the maxi brakes were released and the service brake applied by someone else while he noted the operation of the braking system. His assessment was that the movement of the brake rods when the brakes were applied was 25 mm, sufficient to indicate that the brake adjustment was satisfactory, and that the braking system appeared to be functional and free of major air leaks. This, of course, would not detect any leak in the system supplying air to the trailer. He did not inspect the trailer: p.232. Mr. McDougall supported an assessment of a travel of 25 millimetres as indicating that the brakes were properly adjusted: p.396. He estimated that some 60% of the brake linings remained, but Mr. Chaseling pointed out that that would not have affected the efficiency of the brakes which would have been just as efficient as with new linings: p.177. Mr. Blomley in his report, Exhibit 4, referred to the engine having sustained some other damage which did not occur in the accident: Exhibit 32. He explained that it appeared to him on inspection of the relevant parts that this damage was reasonably old, so that it preceded the accident: p.239. Mr. Blomley thought that this would produce some loss of compression efficiency but would not affect the efficiency of the engine, or the engine brake, very much: p.246.
Analysis
There was evidence from other truck drivers (and the first defendant: p.250) that a loaded cattle semi-trailer would ordinarily be brought down that slope in the gear used by the plaintiff, and there was no evidence that it was negligent of the plaintiff to use that gear, or that it was negligent for the defendant to have failed to tell him not to use that gear. The plaintiff said that his usual practice was to supplement the retarding effect of the engine brake with the air brakes on occasions (presumably during the particularly steep parts of the slope) and that his difficulties with this descent arose on the first occasion when he attempted to do that. There was no evidence that such a technique would be regarded as negligence or inappropriate, since such behaviour would, I think, be essentially consistent with the practice advocated by Mr. Chaseling in placing reliance essentially on the engine brake for such a descent. Mr. McDougall also spoke of minor speed adjustments with the air brakes as a supplement for the engine brake during the descent of a long grade with a heavy vehicle: Exhibit 34, p.13.
I think one significant aspect of Mr. Chaseling’s evidence was that it made it clear that the plaintiff made an assumption in the course of the descent of the range which was incorrect. The plaintiff assumed that when the buttons on the dashboard popped out that meant he had no air, so that there was no point in applying the emergency brake or parking brake. Mr. Chaseling said that these brakes operate on different circuits, and that if the buttons popped out that meant that the service brakes had been lost, which does not necessarily mean the emergency brake is ineffective: p.185. He expressed the view that it was quite possible for air pressure to fall off in the service brake system while the maxi brakes do not come on without being put on manually because there would be insufficient air to apply the service brakes, but not enough to release the maxi brakes: p.184. Such a situation could develop in part because of the circumstance that the air systems are kept segmented and separate as much as possible. He also pointed out that there was no reason to think that the truck’s compressor was not working, and if air was heard hissing out, that would imply that there was still some air pressure in the system: p.184.
The plaintiff’s assumption therefore that once the buttons had popped out there was nothing else he could do to attempt the slow truck may well have been false; if he had applied the emergency brake, the spring activated maxi brakes on the prime mover should have come on and should have been sufficient to stop the truck subject only to their being adequately adjusted and their not overheating. Truck brakes can overheat and if they do so they become less effective, a process known as brake fade, so that an attempt to descent the range relying only on the air brakes would be likely to produce overheating and loss of breaking, which would affect the emergency brake as much as the service brake because both use the same brake shoe: Exhibit 9. Overheating leading to brake fade affects the brake drum and shoes. But Mr. Blomley expressed the view on an inspection of the brakes of the prime mover that they had not been significantly overheated, which suggests that brake fade was not involved in the accident: p.234.
In oral evidence Mr. McDougall agreed that it was possible for there to be a leakage of air in the service brake which would prevent it from operating, but without there being a sufficient loss of air to produce an application of the emergency brakes: p.392. He said however that once the button for the trailer popped out that should produce a further bleeding of air out of the trailer braking system which ought to have produced an application of the emergency brake in the trailer in a matter of seconds: p.393. The effect of the button popping out is that all the control systems for the trailer would bleed down to zero and the prime mover system is effectively isolated from the trailer so that the prime mover system remains fully operational, whereas the trailer is fully isolated: p.393. The emergency brake on the trailer would apply but the prime mover brakes would not apply: p.393. Mr. McDougall said that for a weight of 60 tonnes a maximum speed of about 20 kilometres an hour was indicated which ought not to be excessive for the engine brake if it was operating at its rated efficiency: p.397.
It may well be therefore that the plaintiff could have significantly slowed his vehicle, by applying the emergency brake during the descent, or even stopped it: p.440. There was, however, no evidence led by either party to show that a reasonably competent truck driver would have appreciated that it was possible for the maxi brakes not to be applied, notwithstanding that the air brake buttons had popped out, or that the defendant ought to have instructed the plaintiff about this matter. The plaintiff’s failure to apply the emergency brake must also be considered in the context of the extremely stressful position in which he would have found himself at the time. It may overcome what is apparently a difficulty otherwise in understanding how this accident occurred, because it appears to have been necessary for both brake systems to have failed, that is for both the engine brake to be ineffective and for the air brakes to have been for some reason unable to retard the vehicle, for it to have run away.
It is possible that someone adjusted the brakes on the prime mover after the accident and before they were inspected by Mr. Blomley, but I think that is unlikely. I am prepared to accept his evidence and I think that it shows that the brakes were properly adjusted on the prime mover at the time of the accident. That suggests that the deficiency in the braking system which resulted in the generation of the defect notice, Exhibit 11, had been fixed by adjustment after it was issued. If all that was required was an adjustment, Mr. Storey regarded that as a simple and straightforward exercise and one that he could have done in a few minutes, so it is probable that, after receipt of the notice, he was asked by the defendant to adjust the brakes and he did so at least on the prime mover and he has subsequently forgotten about the incident. If the deficiency which gave rise to the requirement to make the brakes efficient involved something more substantial than adjustment, it probably was not done, and may well not have been detected by Mr. Blomley in his examination, but I would expect that something of that nature would be the sort of problem which would have been more readily detectable by a driver. The plaintiff experienced no difficulty in driving this vehicle during the best part of a couple of days prior to this accident: p.89. Although he probably was not making much heavy use of the air brakes during that period, I suspect if there were something seriously wrong with them he would have noticed something. On the whole I think the probable explanation for the defect notice is that the brakes were out of adjustment and that that was probably fixed on the prime mover after the notice was issued, and before the accident.
I am wary about some of the detail of Mr. Downes’ evidence, and it particularly strikes me as odd that he claims to have been right behind the truck (p.375) until it pulled away, and then not to have increased speed (p.368) but to have lost sight of the truck before it rolled over: p.367. Having reviewed the plan, Exhibit 19, and the video tape, Exhibit 15, I find it hard to accept that Mr. Downes was right behind the semi-trailer at the point marked in red on Exhibit 19, but that the semi-trailer was able to accelerate sufficiently quickly to get from there to the point where it rolled over and to have completed the rollover before Mr. Downes got close enough to the intermediate left hand bend to be able to see across it to the point of the accident. Because of the angle of the video camera, it is not clear just at what point coming into this bend one can first see the accident seen through the trees, but it is clearly visible as soon as one has gone round this bend which is 100 metres before the accident, and less than 200 metres from the point where Mr. Downes said the plaintiff took off. The point of the accident is about 300 metres from the red mark, but it would be clearly visible 100 metres further back up the hill, and should be visible 150 metres back up the hill. If Mr. Downes covered the distance at only 20 kilometres per hour, the plaintiff’s vehicle must have averaged more than twice that for it to have got to the point of the accident and had the accident before Mr. Downes came to sight. That is not physically impossible by any means, but it is surprising behaviour.
There are, I think, also other difficulties with the hypothesis that the plaintiff had the semi-trailer under control and travelling at 20 kilometres per hour up to the point where he was past the first hairpin bend (the red mark on Exhibit 19) but that he then deliberately accelerated (presumably having forgotten about the other bend) and by the time he remembered it was travelling too fast to stop for it. I am prepared to rule out the possibility that the plaintiff deliberately drove in a fashion intended to cause the vehicle to roll over; there is no evidence of that, and such an argument was not advanced on behalf of the defendant. Another possibility is that he deliberately drove at a speed that was recklessly high. The other explanation is simply that he forgot about the last sharp corner in the hill, but if this were true, one would not expect this to continue right up to the point where the vehicle rolled over; at some point his memory would be refreshed, if only when he saw it in front of him, and at that point if there were no problem with the brakes, he should have been able to make an emergency brake application. That may have been able to bring the vehicle to a halt even under those conditions; as Mr. McDougall pointed out, the braking system is very efficient at stopping provided that it is not overheated and is properly adjusted: p.435. Even on the basis of a weight of 60 tonnes, the service brakes ought to be able to stop the truck from 20 kilometres per hour in 17 metres: p.435. The plaintiff had far more than this in which to see the last tight corner, and even if he was going much more than 20 kilometres per hour he ought to have been able to slow down. Even if he could not, I would have expected him to try, and that should have left tyre marks on the road, significantly different tyre marks from those that were observed by the police officer and Mr. and Mrs Matton. If the brakes were cold and well adjusted, an emergency brake application 50 metres back from the accident sight should have left extensive tyre marks from both sides of the vehicle. Only very limited tyre marks are visible in Exhibit 39, and none are visible in the area close to the camera (and see p.257); yet well before he got to that point the plaintiff must have been aware of the further sharp corner he was approaching, even if he had forgotten about it when he was 200 metres further back up the hill, and he must have been aware that he was approaching it far too fast.
People forget things at times, even things that are part of a routine that they have performed on many occasions. I can accept the real possibility that the plaintiff, when descending this hill, might have got past the first hairpin bend and then forgotten that there was another and thought that it was safe to speed up. That is a plausible explanation for his taking off at that point, but it is not a plausible explanation for his failing to react and at least attempt to correct the situation further down the road. Even if one assumes the plaintiff’s evidence is completely unreliable (because on this hypothesis he is lying to cover his mistake) I do not think this explanation is consistent with the other reliable evidence. Sudden recklessness is inconsistent with his apparent care on the earlier part of the descent. If he tried to change gears and failed, he should have been able to stop with an emergency brake application. The service brakes should have been easily able to supplement even an inefficient engine brake; according to Mr. McDougalll the service brakes alone should have been sufficient for all or most of the descent.
I think that a more plausible explanation is that the engine brake was not very efficient, and was not on this occasion able to hold the truck at 20 kilometres per hour unassisted. When the plaintiff attempted to use the service brakes on the first part of the descent a serious leak developed in the air brakes to the trailer which resulted in a loss of efficiency in the service brakes generally, so that there was some increase in the speed. Subsequently there was a sufficient loss of air for the trailer braking system to isolate (the button popped out) which would a few seconds later have resulted in an application of the maxi brake automatically on the trailer. During this time however the vehicle had gathered speed to some extent. There is evidence that the brakes on the prime mover were properly adjusted after the accident, but there is no evidence about the state of the brakes on the trailer, except that the maxi brake did not operate on the middle axle of the trailer, but only on the wheels on the first and third axles. Accordingly, the maxi brakes were attempting to stop a heavily laden semi-trailer by braking on only two of its six axles. Even if the trailer brakes were properly adjusted (and they may still not have been) this was not sufficient to bring the vehicle to a stop, although it may have been enough to prevent it from accelerating further, at least until those brakes overheated. Poor adjustment of the trailer brakes may not have been obvious in use if the prime mover’s brakes were well adjusted and efficient. It may be that the vehicle took off after the first hairpin bend as a result of overheating and brake fade on these maxi brakes on those two axles. Mr. McDougall thought that the vehicle could descend all or most of this range on its air brakes without suffering brake fade (p.431) but that was based on an application of the service brake which would be to all six axles; here the heat from retarding the truck had to be absorbed with the shoes and drums of only two axles, possibly fewer if not all of these were properly adjusted. The heating up of these maxi brakes would place more pressure on the engine brake, and that may well have caused something in the gear box to let go. Both Mr. Chaseling (p.187) and Mr. McDougall (p.423) said that if the speed became too great while using the engine brake, it could cause the gears to disengaged. The result was that the engine brake was lost and the only thing retarding the vehicle were the overheated maxi brakes on two axles. On the whole that seems to me to be the most plausible explanation for the accident. I acknowledge that it does not fit in with all of the evidence, including all of the technical evidence, but no hypothesis does, and it seems to me that this explanation is the most plausible taking into account all of the evidence. I should add that in the circumstances I do not attribute any significance to the reference to “brake failure” in Exhibit 37, signed by Mrs. Matton: p.328.
It follows that the accident occurred because of mechanical problems with the vehicle, rather than because of bad driving or forgetfulness on the part of the plaintiff. Counsel for the defendants frankly conceded that if that was the situation he could not dispute liability, and I think that that was appropriate. Indeed, the attack on the plaintiff’s credibility was essentially based on the proposition that the accident could not have happened in the way he described in the light of the expert evidence and the evidence of Mr. Downes, and that therefore the plaintiff’s evidence must be unreliable. Once that position is rejected, there is no reason not to accept the plaintiff’s evidence and I am prepared generally to accept it, although it does not follow from that that I necessarily accept every word the plaintiff said. I do accept, however, particularly in the light of the other evidence, that there was an unidentified vehicle parked across the safety ramp. There was no apparent justification for this, and I think it was plainly negligent for the driver of that vehicle to park in that position, and the driver of that vehicle, and hence the Nominal Defendant, is liable in negligence. I accept the plaintiff’s evidence that if the safety ramp had been available he would have used it, and in those circumstances the accident would have been avoided. So far as the first defendant is concerned, I think there was negligence and breach of contract in failing to take reasonable care to provide reasonably safe plant and equipment for the plaintiff to work with. I think for the same reason there was a breach of s.9 of the Workplace Health and Safety Act, which is actionable. It is unnecessary for me to be concerned about any apportionment between them, as there was no issue in the trial about that. I do not accept that the Motor Vehicle Safety Act imposes civil liability for breach of s.20, although in the circumstances that does not matter. A penalty is imposed, and the prohibition is not for the benefit of a category of persons: Heil v. Suncoast Fitness (Appeal 5199/98, Court of Appeal, 15.12.98, unreported). As well, I do not accept that s.20 prohibits such use of the vehicle as occurred here, and I am satisfied that the brakes on the prime mover had been adjusted.
There was evidence from various sources that the first defendant’s vehicles were not well maintained generally. Other defect notices had been issued to the defendant in respect of this vehicle (Exhibit 28) and Mr. Matton admitted that he had received defect notices both before and after this accident: p.274. Mr. Smith, a mechanic who worked with Mack Trucks Australia in the early ‘90’s recalled working on a truck owned by the first defendant which was in a bad state of repair for its age and hard worked even for a livestock carriers unit: Exhibit 8. His impression was that the maintenance on it had been of a low standard. There was apparently no system of preventative maintenance or any system of regular maintenance. Mr. Tilney was critical of the first defendant’s maintenance practices. It is not possible to be precise about what maintenance ought to have been done which, if done, would have probably prevented this accident, but where the accident appears to be related to problems in functioning with various components on the vehicle, and where there is evidence of a general history of poor maintenance of vehicles, I think it is a reasonable inference that the probable explanation for the deficiencies in the vehicle is a failure to take reasonable care properly to maintain the vehicles. No records of mechanical services due for the vehicles were kept: p.134.
The weight of the vehicle was more than the figure of 42.5 tonnes used by Mr. McDougall in his report, Exhibit 34, although I accept that the vehicle was loaded in the way which is typical of vehicles of this kind, and I do not think that it was negligent in itself just to have the vehicle as heavy as 50 tonnes gross. The fact that the vehicle was a heavy one however is a factor which makes proper maintenance of the relevant components, the brakes including the engine brake, particularly important. It is also a factor which should be borne in mind when assessing what might have occurred, and how brakes might have performed if, for example, they were applied to only two of the six axles. If the vehicle had been lighter the engine brake would have been able to hold the speed down better, or the transmission may not have failed, but I think the real cause was the failure properly to maintain the brakes rather than the extent to which the trailer was loaded.
In view of the liability on the part of the first defendant for damages for breach of contract, the same would apply to any finding of contributory negligence. However, in the circumstances, I am not persuaded that any of the claims for contributory negligence have been made out. Although there is, as I have said, reason to think that the plaintiff may have been able to improve his position by applying the emergency brakes on the prime mover (or possibly even the service brakes on the prime mover) after the buttons had popped out, there was no evidence that that was something which would ordinarily be known to a truck driver, nor was there any evidence that the plaintiff had been instructed about that characteristic of the vehicle. This allegation is therefore not made out. Neither are any of the other allegations of contributory negligence. There was no evidence that the plaintiff’s injuries were worse than they would have been had he been wearing a seat belt: Eagles v. Orth [1976] Qd.R. 313. The plaintiff is therefore entitled to recover damages from the defendants.
Quantum
The cabin of the semi-trailer was extensively damaged in the accident: Exhibit 16. The plaintiff was trapped in the cabin for some time, although eventually Mr. Downes and some others were able to get him out: p.369. The plaintiff was conscious and was bleeding, and in a good deal of pain until he was removed by ambulance: p.61-2. During the journey he required repeated pain relief. He was admitted to the Mackay Base Hospital where he remained for 10 days (Exhibit 1), which notes as part of the history “Walked away from accident” which is not true. He was found to have abrasions to the head, multiple abrasions and lacerations to the right chest and right arm, both legs and the left hand, with considerable pain in the abdomen which ultimately was tracked down to a perforation of the small bowel. He also developed serious problems with the right lung. The perforation of the bowel was life threatening (p.67) and the problem with the lung was also serious, so overall the plaintiff suffered very serious injuries in this accident. He required surgery for the perforated bowel. After his discharge on one occasion while he was showering his wound reopened requiring further treatment: p.64. There was also some problem with infection in the wound to the stomach: p.65. For the infection in the scar he saw a general practitioner on 1 March 1993, who prescribed antibiotics: Exhibit 7. The plaintiff was cleared to return to work on 5 April 1993: Exhibit 1.
The plaintiff has continuing problems of pain in the neck, the shoulders and the right arm: p.68. The pain does not actually prevent him from doing many things, but they are painful and that discourages him from doing things, particularly anything strenuous. He finds work as a truck driver painful, even the relatively undemanding type of driving he is doing now. He cannot sleep on his right side, and has difficulty sleeping generally because of the pain: Exhibit 17, para. 51. He also gets aches in his neck, his lower back and his legs, and is now having regular headaches. He said he takes pain killers at the rate of a packet of Neurofen a day; formerly he was taking a packed of Panadol a day: p.72. The pain has interfered with recreational activities, waterskiing, camping, and generally impaired his social life: p.74. He finds gardening more difficult and his wife now does most of the lawnmowing: para. 70. He also has cut down on a variety of household chores: para. 71. He has difficulty in writing for any length of time, getting a variety of symptoms in his right arm and hand: Exhibit 17, para. 57. He has been left with some scarring to his stomach and his shoulder and arm: p.62 The scarring is sometimes irritated by clothing, and is prone to sunburn: Exhibit 17, para. 16. He is considering further surgery to improve the scarring: para. 60.
The plaintiff was seen by Dr. MacFarlane, an orthopaedic surgeon, on 11 April 1996 for the purposes of a report: Exhibit 29. The list of present problems is less extensive than those given in evidence, and the examination produced a full range of movement except for slight restriction in lateral flexion of the neck and some loss of movement in the shoulders, with minor crepitus throughout. There was some weakness in the right arm, and there was a possible hernia associated with the upper abdomen scar. Dr. MacFarlane assessed a 10% permanent impairment of the whole person on the basis of the AMA guides, associated with the neck injury, including the fracture of the C6 vertebrae and the injury to the right pectoralis major muscle. There was also thought to be a possible right carpal tunnel syndrome unrelated to the accident, and there may have been a need for repair of the hernia. In the short term, Dr. MacFarlane did not think things would change much, with the prospect of them getting worse with arthritis progressing in the neck, which would be worse than would otherwise have been likely for him.
Dr. MacFarlane reviewed the plaintiff on 2 October 1998. There was still some loss of abduction and flexion in the shoulders, with some tenderness in the insertion of the right rotator cuff tendon. There was some slight weakness of the right arm but no wasting in the shoulder muscles. There was some restriction of movement of the neck but no tenderness. The possible hernia was still present. There was a problem in the right shoulder detected on x-ray which had not been present in the x-rays taken at the Mackay Hospital in February 1993, which Dr. MacFarlane thought was therefore not associated with the accident. The assessment of permanent impairment from the accident was unchanged. Dr. MacFarlane thought that the plaintiff required an operation on the right shoulder, and that there was some uncertainty as to the final outcome, although a good result was obtained with the majority of patients: Exhibit 30.
Dr. MacFarlane regarded the problem with the right shoulder, which he thought was unconnected with the accident, as the most important in terms of its effect on the plaintiff’s work as a truck driver: p.335. He thought the plaintiff would not be able to drive a cattle truck or to load or unload a significant amount of freight, even with a successful operation on the shoulder: p.335. At the present time there was between 10% and 15% loss of use of the right arm as a result of the shoulder problem: p.348. Dr. MacFarlane thought that the early degeneration of the cervical spine was probably attributable to the fracture of C6 in the accident: p.349.
The plaintiff was seen by Helen Coles, an occupational therapist, on 13 April 1996 for the purposes of a report: Exhibit 4. The report details the various effects the injuries have on the plaintiff and his life style, and the various difficulties they caused with his driving trucks, particularly cattle trucks. Grip strength in the right hand was unusually low, much lower than that in the left hand. Lifting 7 kilograms using both hands was reported as producing progressive increase in pain. He was not able to maintain continuous load handling on a test. Ms. Coles assessed the plaintiff as suffering deficiencies in functional capacities, with impairment of function of both upper limbs and shoulders, particularly associated with pain. Ms. Coles thought the plaintiff was not really suitable for truck driving, but that he persisted with it because of job satisfaction and stoicism. He would be otherwise disadvantaged on the labour market and his range of employment options would be somewhat limited, with no skills transferable into clerical or light industry areas. There was a further telephone review on 8 June 1999, and a review of other medical reports: Exhibit 23. There was no significant change other than some loss of movement in the right shoulder and increased headaches, and she was concerned about his capacity to work much longer in his present condition.
The plaintiff was seen by Dr. Davies, a physician, on 24 May 1996 for the purposes of a report: Exhibit 6. At that stage the plaintiff was not complaining about headaches or dizziness, and did not complain about particular problems with the shoulder on the right side, although there was shoulder pain which prevented him from elevating his arms to any great extent. Dr. Davies thought there might have been some nerve root damage in the accident, causing the problems in the right hand, although he could not be sure of that, and thought that the level of pain required some further investigation. He could not explain the interscapular pain. He did not think that abdominal discomfort after eating was likely to be associated with the accident.
The plaintiff was seen by Dr. Boyce, neurologist, on or about 3 June 1996 for the purposes of a report: Exhibit 24. The complaint to Dr. Boyce were of a persistent ache in the right upper limb, a pain in the right shoulder and recurrent neck pain. There was a markedly tender neck with restricted movement, reduced power in the small muscles of the neck, and a right C5/C6 sensory deficit. Dr. Boyce thought the matter required further investigation. Possibly as a result, further x-rays were taken and an ultra-sound of the right shoulder carried out on 9 July 1998: Exhibit 5. This detected a partially united avulsion fracture in the right shoulder, long standing wedging of the body of C6 with some osteophytes on C6 and C7, and very faint calcification of the supraspinatus tendon. There was no evidence of any tendon tear.
The plaintiff was seen by Dr. White, an orthopaedic surgeon, on 9 July 1998 for the purposes of a report: Exhibit 3. The complaints to Dr. White included neck pain, severe regular headaches, and severe pain in the right shoulder with limitation of movement, particularly with lifting. Movements of the cervical spine were all reduced by about one quarter, and the power of the right grip was reduced. Dr. White was of the opinion that the plaintiff suffered the injury to the right shoulder in the 1993 accident, noting that the x-rays taken in 1993 did not show any adequate view of the shoulder. The cervical spine was developing progressive degeneration which would worsen further in the future, and could not be assisted by surgery. The injury to the right shoulder required consideration of some surgical treatment, but there would be a partial disability of the right arm in any event. He thought that the impairment of the body as a whole as a consequence of the neck injury was in the order of 10%, rising to 15% with degeneration.
Dr. White reviewed the plaintiff in January 1999: Exhibit 2. Dr. White thought it more likely that the injury to the right shoulder was attributable to the accident, because the plaintiff was relatively young for such a condition to develop through degeneration, and it was not clearly excluded by the x-rays taken in 1993. This proposition of course assumes the absence of any other relevant injury: p.223. He noted that the x-rays in 1996 were reported as showing no abnormality and thought it desirable to see the actual x-rays. Dr. White did not indicate in his oral evidence that he had subsequently seen the actual films taken in 1996. Dr. White conceded that if the plaintiff had had this condition during the period from 1993 to 1996 while working as a livestock haulage driver he would expect the plaintiff to be consulting a doctor about symptoms in the right shoulder: p.226. It is possible that at some stage after the x-rays were taken in 1996 the plaintiff did something else which caused the injury to the right shoulder. Dr. White also thought that surgery to the right shoulder would probably improve it, although there was a significant chance that it would not: p.224. Even with a successful operation to the right shoulder the plaintiff should not be working as a truck driver except in a light occupation: p.227. The main problem with continuing his present kind of driving would be the roughness of the roads on which he has to drive: p.228.
The plaintiff saw Dr. Everingham, a plastic surgeon, on 20 November 1998 for the purposes of a report: Exhibit 25. The report details the various scars which Dr. Everingham regards as permanent, and noticeable but not producing a significant deformity and as not justifying any surgical revision. The chest scar could be revised at a cost of approximately $1,250, but it is not clear whether that would prevent irritation through rubbing with heavy cotton shirts: Exhibit 26. I saw the scars which are quite noticeable on the torso, but are not disfiguring or ugly, and justified a fairly moderate award of damages.
The defendant disputes that the avulsion fracture and the tendon degeneration were caused by the accident. Dr. MacFarlane noted some problems in both shoulders when he saw the plaintiff for the first time, and Dr. Davies also did not distinguish between the shoulders in terms of pain: Exhibit 6. On the other hand, Ms. Coles noted pain in both shoulders but worse on the right, aggravated by driving, although she noted that the plaintiff drove more with his right hand than with his left hand, so that the right shoulder might have been worse because it was subjected to greater use: Exhibit 4. Dr. Boyce, who was seen in June 1996, refers only to neck pain and pain in the right shoulder and right upper limb. He recommends the right shoulder be seen by an orthopaedic surgeon. It is possible of course that between the x-ray on 11 April 1996 (p.346) and the attendance on Dr. Boyce on 3 June 1996 the plaintiff did the damage to the right shoulder. It seems a little surprising that Dr. Boyce would think that the plaintiff had capsulitis in the right shoulder which should be seen by an orthopaedic surgeon, but this was not detected by the orthopaedic surgeon who saw him on 11 April 1996, if it were then present. Although Dr. White is sceptical of the x-rays taken in April 1996, both the radiologist who reported on the films and Dr. MacFarlane who saw the films thought that they did not show an avulsion fracture, and Dr. MacFarlane thought that the x-rays that were available in 1996 were better than those taken in 1993 and would show up any such fracture: p.349. He acknowledged the possibility that there was a slight fracture which had become worse as a result of something further done after the 1996 x-rays were taken (p.350) but otherwise was not deterred from his view that the shoulder problem was not attributable to the accident.
I think that Dr. MacFarlane has the advantage in the formation of his opinion of having seen the plaintiff in April 1996, over two years before Dr. White saw him, and having actually seen the x-rays taken that month, so that he could assess what they showed and the prospects of their having missed something of this significance. Dr. White, on the other hand, did not see the plaintiff until July 1998, and has only seen the report of the 1996 x-rays. It also seems that there was a change in presentation between April and June 1996: p.347. I acknowledge the significance of Dr. White’s reasoning and the argument on behalf of the plaintiff, that such an injury might have been masked by more serious injuries at the time of the original accident, but I would not have expected that to continue three years later when the plaintiff was seen by Dr. MacFarlane. It is unfortunate that I have no medical reports covering the period between early 1993 and early 1996. On the whole I am not persuaded that is more likely than not that the plaintiff suffered a avulsion fracture and tendon injury in the right shoulder in this accident. I think that these particular problems have an independent cause. Part of the plaintiff’s pain since 1996 has been attributable to this independent conditon, but that should be reduced if his proposed shoulder operation is successful. On the other hand, I think that the arthritic degeneration of the neck is attributable to the accident, and that the headaches are probably associated with this.
The plaintiff was born on 14 July 1967 and is 32 years of age: Exhibit 17. He married in June 1997, and has two children by a previous relationship who live with their mother. He was at the time of the trial working as a truck driver employed by Brambles Industrial Services, where he is driving trucks hauling coal within a mine from the extraction point to a coal loader at Mallowa: p.120. This work is not physically demanding, and is actually much more remunerative than his previous work, but he still suffers difficulty with fatigue and at times pain, and there is some stoicism in his continuing to do this work. I think that is likely to continue, and that the plaintiff’s willingness to put up with pain in order to continue to be in employment should be taken into account in assessing damages for pain and suffering. He also, I think, suffered a good deal of pain in the past in trying to cope with jobs that were really beyond him, and I think this is a relevant factor as well. The plaintiff has lost part of his capacity to enjoy recreational activities, and his pain and associated frustration would make him less agreeable as a husband, and will have affected his personality and disposition. His pain level will increase as a result of degeneration in the neck which is a significant factor given his age. The plaintiff’s suffering at the time of the accident and over the next few days would have been particularly severe. The percentage disability does not reflect the full effect on the plaintiff’s life, because of the significance of the constant pain. In all the circumstances I will assess damages for pain, suffering and loss of amenity at $42,500. I allow $2,500 of this specifically for scarring. I apportion $20,000 to the past, and allow interest at 2% for 7 years.
The only past economic loss sought is loss of wages during the period when the plaintiff was off work, just over 7 weeks. During this period the plaintiff received workers' compensation, and the amount claimed is $4,183.17, which I think in the circumstances is fairly modest, bearing in mind the employment history of the plaintiff revealed in Exhibit 17. There is also the consideration that ultimately the plaintiff came to get employment which was much more remunerative than he had previously had. I will allow past economic loss in that amount, which will not bear interest since it corresponds with the workers' compensation payment.
The special damages claimed are set out Schedule D to Exhibit 17. The only argument about these was the extent to which they related to injuries not caused in the accident. The largest single component is the cost of pain killers, claimed at the rate of 1½ packets per day. I must say that that is a very high rate of consumption, and is not entirely supported by other sources; Exhibit 4 refers to a consumption of “up to 24 Panadol a day”, as does Exhibit 6 and the evidence at p.140; these suggest a somewhat lower average rate of consumption. In addition it is fair to attribute some of the more recent consumption of pain killers to the problem with the right shoulder which I think is not compensable. On the whole if I allow one third of the claim for Panadol that will be more realistic; otherwise I will allow the medical expenses as claimed, which produces a total of $7,221.71. The other element of special damages is the Fox v. Wood factor, of $1,106.75. I will allow interest on $6,857.50, after excluding the amount paid by WorkCover, at 5% for 7 years.
With regard to future economic loss, it is unclear how long the plaintiff will be able to continue in his present employment; he may be prevented from continuing the work by a deterioration in his condition, or the work may simply go away, because of difficulties in the coal industry, or simply because the extraction point moves closer to the loading point, since the digging is heading in that direction: p.120. It is possible that the plaintiff will be able to find other employment as a truck driver which is relatively undemanding, and driving on roads rather than a mine site may be easier on his neck. His ability to cope with the problems in the right shoulder may be restored to some extent by the proposed surgery, which he seems to be willing to undertake: p.119. On the medical evidence that surgery will probably be successful. Nevertheless it is likely that the plaintiff’s employment prospects as a truck driver will have been curtailed as a result of these injuries, although some allowance should be made for the possibility that the plaintiff may have suffered difficulties anyway because of the shoulder.
The plaintiff’s earnings at the present time are high in the light of his other earnings as a truck driver, and I think it is unrealistic to assess his damages on the basis that but for this problem he might have been earning at the same rate until he was 65. The vagaries of the coal industry and the plaintiff’s varied employment history (within the truck driving field: see Exhibit 17) suggest a lower figure should be used for long term estimates. There is also the possibility that difficulties with the right arm could have interfered with his driving heavy vehicles in any event, or that other health problems might have produced difficulties for him as he aged. Dr. MacFarlane spoke of the arthritic changes in the neck developing earlier than would normally have been expected (Exhibit 29) which suggests that he would have expected some arthritic problems at some stage in the neck anyway. On the whole I think it most unlikely the plaintiff would have been doing heavy truck driving until age 65 if this accident had not happened.
Nevertheless, his position now is a good deal worse. Dr. MacFarlane thought that he would be having some problems driving trucks in his 40’s, particularly because of the neck: p.335-6. If the plaintiff is unable to obtain a driving job with which he can cope as his condition deteriorates, and he cannot obtain some supervisory position (which his fairly extensive experience in truck driver may qualify him for) he may well have considerable difficulty in finding employment. The plaintiff’s application and stoicism have served him well so far, and he may be assisted if an operation on his right shoulder is successful, but I think it probable that a point will be reached, although I cannot say when, when he would no longer be able to drive heavy trucks. It is difficult to know what he would do at that point given that that is the only field in which he has any experience. I think that it is not possible to calculate a figure for future economic loss, and I am conscious of the fact that the loss is likely to be in the relatively more distant rather than nearer future, but I think that this is a case where the plaintiff is facing more than just being at risk in the labour market, or a risk of additional periods of unemployment; I think he has the prospect of his working life being significantly curtailed. That should be taken into account when fixing the global award, which I do at the sum of $120,000. There is a claim for loss of superannuation benefits, and this is now commonly allowed at 6% of the total for economic loss, which in this case is $7,451.
A claim was made for future expenses, but there are some difficulties with this. Much of it relates to the surgery on the right a shoulder and I think therefore not recoverable. The claim for painkillers is for reasons given earlier also too high, and I have allowed future gratuitous care separately. On the other hand, I think that the plaintiff is likely to require some additional medical treatment as his neck deteriorates, and that may well be of benefit to him. On the whole I think a realistic and moderate estimate of future expenses is $5,000.00.
The remaining issue is gratuitous care for which a claim is made in Exhibit 17. The attendance of his present wife in the period of the hospitalisation is, I think, uncontroversial, as is care during the period of convalescence which she put at 6 weeks: p.139. Although his wife has done some things for him since, I do not think that it is realistic to say that after the period of immediate convalescence there was a continuing need for assistance. For past care I will allow $1,740. For the future, I think it probable that a point will be reached where he will require some assistance but that is likely to be well into the future. It is very difficult to know what this is likely to be but I think that it would be appropriate to allow a modest amount of $2,000 to cover it.
Summary
A. Pain, suffering and loss of amenities $ 42,500.00
B. Interest on $20,000 @ 2% for 7 years $ 2,800.00
C. Past economic loss $ 4,183.00
D. Future economic loss $120,000.00
E. Loss of superannuation (6% of $124,183) $ 7,451.00
F. Special damages including Fox v. Wood $ 8,238.00
G. Interest on relevant special damages ($6,857.l5 @ 5% for
7 years) $ 2,400.00
H. Future expenses $ 5,000.00
Gratuitous care (past) $ 1,740.00
J. Gratuitous care (future) $ 2,000.00
Sub-Total$196,312.00
LESS
Refund to WorkCover $ 4,547.00
TOTAL:$191,765.00
There will therefore be judgment that the first defendants pay the plaintiff the sum of $191,765 and the second defendant the sum of $196,312, each of which includes $5,200 by way of interest. I will hear submissions in relation to costs, but unless another order is appropriate, I will order the defendants to pay the plaintiff’s costs of and incidental to the proceeding to be assessed.
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