Malek Shahi v Granger
[2011] SADC 18
•24 February 2011
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MALEK SHAHI v GRANGER
[2011] SADC 18
Judgment of His Honour Judge Soulio
24 February 2011
TORTS - NEGLIGENCE - APPORTIONMENT OF RESPONSIBILITY AND DAMAGES
Plaintiff injured after being struck by a car while crossing road - liability in dispute.
Negligence and contributory negligence found.
Significant issue as to when plaintiff returned to work - whether residual incapacity - whether earning capacity affected.
Held: Damages assessed before apportionment at $80,244.50 inclusive of interest to judgment. Liability apportioned 85/15 in favour of plaintiff.
Wrongs Act 1936 s 35A, referred to.
Pollard v Ensor [1969] SASR 57; Teubner v Humble (1963) 108 CLR 491; British Frame (Owners) v Macgregor (Owners) (1943) AC 197; Pennington v Norris (1956) 96 CLR 10; Fantis & Ors v Abi Mosleh & Anor [2007] 97 SASR 360; Joslyn v Berryman (2003) 214 CLR 552; Kenny v Ritter [2009] SASC 139; Jones v Dunkel (1959) 101 CLR 298; Manley v Alexander [2005] 223 ALR 228; Vale v Eggins [2006] NSWCA 348; Keith Bruce Evans & Anor v Stuart James Lindsay [2006] NSWCA 354, considered.
EVIDENCE - ADMISSIBILITY AND RELEVANCY
Business records - source documents destroyed - documents not discovered.
Commissioner of Australian Federal Police & Anor v Propend Finance Pty Ltd & Ors (1997) 188 CLR 501; Kadlunga v Electricity Trust (SA) (1987) 43 SASR 313; Allen v Tobias & Anor (1958) 98 CLR 367, considered.
MALEK SHAHI v GRANGER
[2011] SADC 18Introduction
At about 12.30am on Sunday 13 October 2002, while the plaintiff and two companions were walking north across North Terrace, west of the King William Street intersection, intending to visit the Adelaide Casino, the plaintiff was struck by a car driven by the defendant travelling west on North Terrace.
The plaintiff claims damages for injuries sustained in the collision as a result of the negligence of the defendant. The defendant denies that he is liable, and in the alternative, says that the plaintiff was also negligent and thereby contributed to his own injuries. He disputes the plaintiff’s entitlement to damages.
Liability
The Pleaded Case
The plaintiff alleges that the defendant was negligent in that he:
·failed to keep a proper lookout;
·failed to apply his brakes in time;
·failed to stop, slow down, or swerve to avoid the collision; and
·failed to drive with due care and attention.
At trial the plaintiff submitted, although it was not pleaded, that the defendant was also negligent in failing to sound any warning of his approach. Counsel for the defendant quite properly conceded that the defendant was not prejudiced by the failure to plead that, nor indeed by the failure to put that to the defendant.
The defendant’s allegations of contributory negligence against the plaintiff include allegations that the plaintiff:
·failed to use the pedestrian crossings approximately 25-50 meters to the east and west of the point of the collision;
·failed to wait until the roadway was clear of traffic before attempting to cross;
·failed to heed the approach of the defendant’s motor vehicle;
·failed to keep a proper or adequate lookout;
·failed to take evasive action to avoid a collision with the motor vehicle; and
·placed himself in a position of danger on the roadway at a time when he was affected by alcohol.
The following narrative constitutes my findings. Some of the evidence was not in dispute and does not need to be detailed in these reasons. Where there are conflicts in the evidence I will specifically refer to them for the purpose of resolving them. One of those issues is whether the plaintiff, at the time of the collision, was intoxicated. In addressing the evidence of the respective witnesses as to the crucial events leading up to the collision, I have generally accepted the evidence of the plaintiff and that of his companion Mr Zadeh. I prefer their evidence to that of the defendant Mr Granger, the passenger in his motor vehicle Mrs Granger, and the witness Ms Routley.
Background
The plaintiff was aged 27 years at the time of the collision. Shortly after 10pm on the evening preceding the collision, the plaintiff, together with two friends, visited the Charles Sturt Tavern, near the intersection of King William Street and Hindley Street. The plaintiff was cross-examined about his alcohol consumption. He said that he had consumed perhaps two beers and one spirit over the course of some two hours leading up to the collision. The plaintiff denied that he was intoxicated or affected by alcohol. There is no evidence of a blood alcohol reading. I am not satisfied on the evidence, the onus being on the defendant, that the plaintiff was affected by alcohol in any relevant way.
The three men walked from Hindley Street to North Terrace along Gresham Street, the first street west of, and parallel to, King William Street. They walked west along the southern footpath of North Terrace for a short distance and then commenced to cross North Terrace at a point opposite Parliament House. The three men walked generally north across North Terrace, but angled slightly towards the west, in the direction of the casino.
While I was assisted to some degree by photographs of the collision scene, and subsequent to the conclusion of the trial two satellite photographs, the failure to provide a plan and the absence of evidence as to distances at the location, made the fact finding exercise more difficult than it ought to have been.
The Collision
At the date of the collision there were three lanes for west-bound traffic on North Terrace. The plaintiff said in evidence that he was walking slightly ahead of his two companions who were conversing with each other. The plaintiff had crossed the first two lanes and was part way into the third lane when he heard one of his companions call out. He looked up and saw a car approaching. He tried to run forward to the median strip but was struck by the defendant’s car.
It is common ground that as a result of the initial impact the plaintiff was thrown onto the bonnet of the vehicle, smashed the windscreen, and when the vehicle came to a halt, was thrown forward onto the roadway. The plaintiff said that he lost consciousness as a result.
Mr Zadeh, a member of the plaintiff’s group, gave evidence of a generally similar version of events. He said that before the group began crossing North Terrace he had looked to the east to King William Street and observed that the traffic lights were showing amber and that no vehicles were coming through the intersection. He said that the plaintiff was walking slightly ahead of him and the third man. He said that upon observing the approach of the defendant’s vehicle he grabbed the hand of the third man and stopped him at the edge of the third lane, but the plaintiff ran forward and was struck by the vehicle. He said that the car was speeding and, although he only saw the car for a very short time, he estimated its speed at 65kph.
The third man, Mr Kowlaloos, was not called. I accept, on the basis of the affidavit evidence of Ms Tait, who is employed by the plaintiff’s solicitors, that he could not be located. No inference adverse to the plaintiff’s case is to be drawn from the fact that he did not give evidence.[1]
[1] Jones v Dunkel (1959) 101 CLR 298.
The defendant was 17 years of age at the time of the collision. He held a probationary driver’s licence. He had been at a party to the east of the city and was travelling west along North Terrace through the King William Street intersection in the lane closest to the centre of the road. He conceded that he was travelling at about 60-65kph. That is consistent with the observation by Mr Zadeh. It is not consistent with the evidence of the defendant’s passenger, to which I refer below. I rely on the concession by the defendant, and accept the estimate by Mr Zadeh, and find that the defendant was travelling at a speed slightly in excess of 60kph.
The defendant said he saw a group of three or four people walking across North Terrace. He said he did not slow his vehicle at all as he approached the group, despite the fact that they were walking across the road. He said that all of the men came to a halt at a point between the second and third lanes. He said that one of the group waved him through and he continued at the same speed when suddenly one of the men, obviously the plaintiff, ran across in front of him. He braked but could not avoid the collision.
The suggestion that one of the group waved him through was not put to the plaintiff nor Mr Zadeh. The defendant’s passenger who also gave evidence, did not observe that happening, or at least did not give evidence of it happening. I reject the defendant’s evidence in that regard.
The defendant’s passenger, Mrs Granger, was, at the time, his brother’s girlfriend. She said that she observed a group of five men in the lane closest to the kerb, staggering across North Terrace. She said the men continued into the middle lane of the three west bound lanes. She suggested to the defendant, who she thought had been travelling at around 60kph, that he should slow down, and said that he applied his brakes and slowed to a speed of about “55 or even 50”. She said that the men crossing the road were not looking towards their car, but rather towards the casino, and it was only when the car was about one car length away from the group that the men “stalled” between the second and third lanes. One of the men, the plaintiff, then darted forward and the defendant braked again but could not avoid the collision. Although I generally accept that Mrs Granger was truthful, I do not accept her evidence that the defendant slowed down when warned by her, and I reject her evidence where it is in conflict with that of Mr Zadeh.
The defendant called as a witness, Ms Routley, who had been standing on the south side of North Terrace with a friend, also intending to go to the casino. She said she observed a group of four or five men running across the road in a dangerous manner and saw the defendant’s vehicle collide with one of them. Her version of the events is inconsistent with all other witnesses. While I have no doubt that she was doing her best to recall the events of that night, I do not accept her evidence.
Over objection from counsel for the plaintiff, I permitted evidence of events which occurred after the collision. It was put to Mr Zadeh that he had at some point gone to the driver’s window which was slightly open, pulled that window out of the door, broken it, and then punched the driver. It is common ground that after the impact, when the plaintiff was lying on the road in front of the defendant’s vehicle, the defendant’s vehicle started to roll forward. Mr Zadeh said he pounded on the bonnet to have the defendant stop the vehicle, and then went to the driver’s window and hit at the window. He conceded that the window broke. He denied punching the defendant. The defendant agreed that his car had rolled forward. He said that one of the men had come to his window and broken the window, and then swung punches at him, but he was not actually struck.
Counsel for the defendant sought to argue that Mr Zadeh’s credit was undermined by his evidence as to the aftermath of the events, and in particular his denial that he had punched the defendant. The respective versions of Mr Zadeh and the defendant differed only in degree. Mr Zadeh did not actually punch the defendant. In any event there might be many reasons why he would deny an assault. I do not consider that his credibility as to the events leading to the accident was affected. I do not consider that anything adverse to the plaintiff’s case turns on that evidence.
Was the Defendant Negligent?
To state what may be obvious, the standard required of a driver of a motor vehicle is high owing to the high risk and potential for damage in a motor vehicle collision. As a consequence, the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver knows what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.[2]
[2] Manley v Alexander [2005] 223 ALR 228 per Gummow, Kirby and Hayne JJ at 12; and see Vale v Eggins [2006] NSWCA 348 per Beazley JA at 15; and Keith Bruce Evans & Anor v Stuart James Lindsay [2006] NSWCA 354 per Beazley JA (Ipp and Bryson JJA agreeing).
Whilst I acknowledge that each case must be decided on its own facts, the observations of Beazley JA in Vale v Eggins[3] are pertinent. There, the appellant, who had been intoxicated and stumbling on a road, quickly changed direction and was hit by a car driven by the respondent. At trial, the evidence established that the respondent, who was travelling at a speed of about 60kph, had seen the appellant from a distance of about 90 metres, and saw the appellant change direction away from his lane. The respondent continued driving and the appellant then changed direction again and stumbled into the respondent’s lane and a collision occurred. The trial judge dismissed the action on the basis that the respondent was not negligent, due to the short time in which the respondent had to react from the moment the appellant stumbled back into his traffic lane.
[3] Vale v Eggins [2006] NSWCA 348.
On appeal, Beazley JA, with whom McColl JA agreed, held that having seen the appellant at a distance of 90 metres, the respondent should have at that stage taken steps as to be in a position to avoid any collision and his failure to do so amounted to negligence.
Beazley JA held that:
… it was incumbent upon the respondent, having observed a danger on the roadway, to take such reasonable steps as were necessary to react to the danger. The time for him to do that was when the respondent first saw the appellant. Whilst it is correct that the respondent took some action at that point, he needed to continue to drive in a manner that enabled him "to take reasonable steps to react to [the] events" that were occurring before him: Manley v Alexander at [12]. In my opinion, the respondent's decision to increase his speed again up to the speed limit when the appellant turned and commenced moving out of lane 3, was not only an error of judgment, it was negligent, as it meant that the respondent was not able to thereafter react to the presence of the appellant on the roadway. [4]
[4] Ibid at para 17.
In Evans v Lindsay[5] the respondent was intoxicated and walking along the middle of a road at night when he was struck by a truck. It had been raining and the road was illuminated by streetlights and low beam headlights of the truck. The trial judge found that the truck driver was negligent in that he had failed to keep a proper lookout and was driving too fast, and that the respondent was contributorily negligent in the amount of 15%.
[5] Keith Bruce Evans & Anor v Stuart James Lindsay [2006] NSWCA 354.
Beazley JA, with Ipp and Bryson JJA agreeing, said at 71:
When a driver is confronted with a situation where there is a risk of injury there may be a range of steps that might be taken by way of a reasonable response. Should authority be needed for this proposition, it can be found in the majority judgment of the High Court in Anikin v Sierra (2004) 79 ALJR 452; [2004] HCA 64. See also Pledge v RTA (2004) 78 ALJR 572; [2004] HCA 13 at [32], where Callinan and Heydon JJ refer to the judgment of Dunford J at first instance. The possible range of responses has to be assessed, not in the reflective calm of a judge's chambers, but in the context of the dynamics that confront the driver that usually calls for quick decision making in circumstances of quite some stress. It will not always be negligent if a driver, in what is virtually split second decision making makes what, on later reflection, was the wrong decision. However it may be negligent if a driver was failing to keep a proper lookout so that she/he, in real terms, deprives her/himself of the ability to make decisions, other than the immediate reaction of "slamming on the brakes".
In the present case, there was no evidence as to the width of North Terrace, nor the distance between the point of impact and the intersection with King William Street, or the precise location at which the collision occurred in relation to adjacent buildings, nor any evidence as to the distance from Gresham Street to where the plaintiff commenced to cross North Terrace. The absence of such evidence, is, as I have said, somewhat of an impediment.
Findings
I reject the defendant’s evidence that the group of pedestrians stopped and remained stationary in the middle of the three west-bound lanes. I find that the pedestrians continued walking, and that Mr Zadeh and Mr Kowlaloos stopped at the point between the second and third lanes when they saw the defendant’s vehicle, and that the plaintiff, who was slightly ahead of the other two, upon being warned of the approach of the car by his companions, made the error of attempting to run forward to the median strip. He was partially in the third lane when he attempted to do so.
I find that the defendant was driving in the third lane of North Terrace closest to the middle of the road and had driven through the intersection of King William Street along North Terrace. He was travelling at just above the speed limit. He was a relatively inexperienced driver. He had the opportunity to observe the approach of the plaintiff and his companions. Although the plaintiff’s passenger, Mrs Granger, may have warned the defendant that he should slow down, I find that, on his own admission, he did not alter his speed as he approached the plaintiff’s group. I accept Mrs Granger’s evidence that the men appeared to be looking away from the car. That is consistent with the course being taken by the men. I find that there was no sounding of the horn by the defendant. There was no suggestion in any of the evidence that he did so.
I accept that the defendant was unable to swerve to the left to avoid the plaintiff as he would have otherwise struck the other two pedestrians. The defendant said that he could not swerve into the slip lane to the right that formed a fourth lane travelling to the road immediately east of the casino as there were other vehicles in the lane. I accept that he braked at the last moment in an attempt to avoid the collision.
Whilst I am not able, on the evidence, to say to what speed the defendant should have slowed upon observing the approach of the pedestrians, so that he might have been able to avoid a collision if they continued to walk across his path, it is clear that had he sounded his horn, the pedestrians would have been alerted to his approach, and may have stopped their passage across the road. He was negligent in not doing so.
Further, in driving at a speed even slightly over the speed limit when a group of people were crossing the road, and where he had the opportunity to observe the path of the pedestrians who appeared to be looking the other way, the defendant was also negligent.
Was the Plaintiff Contributorily Negligent?
The standard of care of a pedestrian is the standard appropriate to one whose activities in ordinary cases can only endanger himself.[6]
[6] Pollard v Ensor [1969] SASR 57 per Bray CJ.
I find that the plaintiff failed to have regard for his own safety in failing to watch the roadway. Although he must have initially looked up and determined that the roadway was clear, he proceeded across the road which contained three west-bound lanes, facing slightly away from traffic coming from the east, intent on walking to the casino, and did not look up again until the last moment. I find that his negligence contributed to the collision.
Apportionment
In apportioning liability between the parties it is necessary to have regard to the relative degree of liability, given that negligence when driving a motor vehicle may result in serious injury or death, whereas failing to care for one’s own safety as a pedestrian constitutes a risk, generally speaking, only to the pedestrian. To state what may be obvious, when both are at fault the question is how far in the circumstances did the motorist depart from the standard of care of a reasonable man driving a motor vehicle, and the pedestrian from the standard of care of a reasonable pedestrian.[7]
[7] Teubner v Humble (1963) 108 CLR 491 per Windeyer J at p 504.
As Bray CJ observed in Pollard v Ensor[8] in relation to such a proposition:
I think that is the test the courts have to apply now; but in applying it they are in my view still entitled to bear in mind that the standard of care of a pedestrian is the standard appropriate to one whose activities in ordinary cases can only endanger himself and that the standard of care of a motorist is the standard appropriate to one whose activities are obviously fraught with danger to others besides himself.[9]
[8] Pollard v Ensor [1969] SASR 57.
[9] Ibid at p 60.
It is a question of the degree of fault, considering all the circumstances, and it is different in essence from a mere finding of fact in the ordinary sense. It is a question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations.[10]
[10] British Frame (Owners) v Macgregor (Owners) (1943) AC 197 at 200-201 per Lord Wright.
What has to be done is to arrive at a “just and equitable” apportionment as between the plaintiff and the defendant of the “responsibility” for the damage. It seems clear that this must, of necessity, involve a comparison of culpability, not of moral blameworthiness, but of the degree of departure from the standard of care of the reasonable man.[11]
[11] Pennington v Norris (1956) 96 CLR 10 per Dixon CJ, Webb, Fullagar and Kitto JJ at 16. See also Fantis & Ors v Abi Mosleh & Anor [2007] 97 SASR 360 per Gray J at 45, and Joslyn v Berryman (2003) 214 CLR 552 at 157 per Hayne J.
In a joint judgment in Kenny v Ritter[12] Gray and Layton JJ said:
The principles guiding the court on the issue of apportionment are well established. They were summarised by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd [footnote omitted] as follows:
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man (Pennington v Norris) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd; Smith v McIntyre and Broadhurst v Millman, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.”
[12] Kenny v Ritter [2009] SASC 139 at para 52.
Here, the potential for injury or death caused by the manner of driving of the defendant, his speed, and his failure to warn of his approach was obvious. The plaintiff’s failure to keep a proper lookout and to anticipate the subsequent approach of the vehicle, constituted a danger only to himself.
I find that the defendant bears the greater proportion of liability in the circumstances of this collision and attribute 85% of responsibility for the collision to the defendant, and 15% to the plaintiff.
Quantum
A number of issues arose for consideration including the nature and extent of the plaintiff’s injuries, whether his injuries prevented him working as a taxi driver, when he commenced driving after the collision, the effect of the plaintiff’s subsequent employment and attempted business activities, and his residual incapacity, if any.
The Plaintiff’s Background
The plaintiff was, as I have said, 27 years old at the time of the accident, and 33 years old by the time of trial. He was born in Iraq but, with his family, was forced to move to Iran when he was about six years old. He was educated in Iran to year 10. He had only limited opportunity to obtain employment in Iran, and worked largely as a street vendor and did labouring work on a casual basis. He travelled to Australia alone, arriving in December 2001. He was initially detained at Woomera Detention Centre before coming to Adelaide. He spoke little English upon his arrival. He completed a six-week employment assistance programme in February and March 2002 before undertaking an English language course which he completed in mid June 2002.
Thereafter he looked for employment. He undertook a training course at the Transport Training Centre at Regency Park, to obtain qualifications as a taxi driver and obtained a certificate on 27 September 2002. He had not, however, received his formal accreditation as a taxi driver, and had not driven a taxi, as at the time of the collision. In fact his accreditation was received on 15 October 2002, two days after the collision.
The Impact
The impact was a significant one. Although there was evidence that the defendant had attempted to brake prior to impact, given the very short space of time in which events occurred, and allowing for some reaction time, the impact occurred at a relatively high speed. As I have said, the plaintiff was struck by the front of the defendant’s vehicle, and was thrown onto the windscreen of the vehicle. The windscreen was smashed, the plaintiff was thrown onto the roadway and lost consciousness. The plaintiff was taken by ambulance to the Royal Adelaide Hospital where he remained for two days.
The Plaintiff’s Evidence
The plaintiff’s command of English was modest. Part way through his cross-examination an interpreter was used to assist him. There were some aspects of the plaintiff’s evidence which caused me concern. In addition, the plaintiff’s recollection of events was poor, although it must be said, he was giving evidence of events which had occurred almost seven years earlier. I did not form the impression that he was deliberately attempting to mislead the court.
The plaintiff said that following his discharge from hospital he was only able to walk with the assistance of crutches or walking sticks, for a week or two. He said that he experienced lower back pain immediately following the collision, and pain in his left leg. He also experienced neck pain which ultimately resolved. The lower back pain and left leg pain did not resolve. He said that his back pain made it difficult for him to stand or sit for long periods, and caused him difficulty sleeping.
He said that there came a time following the collision that he commenced looking for employment, and obtained work at Viscount Plastics in mid 2003, working as a process worker on a machine. He worked on a late shift, from 11pm to 7am. The work was intended to be full-time, but he was not able to cope with full-time work and would take periods off work because of his symptoms. He was able to cope with light duties. During a shift he would experience numbness in his back, but said that he tried hard to do the work because he wanted to keep his job.
He said on one occasion he fell at work, and was taken to the first aid room where he was asked a number of questions about his health. He told his employer’s representative that his back was troubling him. He was asked whether that was caused by his work and said that it was not, and that he had been involved in a previous accident. Following that incident he was advised that he was no longer required at work. He said in evidence that he had worked at Viscount Plastics for a period of almost two months. The documentary evidence however disclosed that he worked for a period of some four weeks.
The plaintiff’s claim for damages for loss of earning capacity was based, at least in part, on a calculation of the amount the plaintiff would have earned had he been able to continue working at Viscount Plastics. Counsel for the defendant cross-examined the plaintiff suggesting that the job was a temporary position, and made available to injured or disabled workers. The plaintiff refuted that. He said that he knew people working there at the time he had started, who were still there.
Following that he remained unemployed, although from time to time worked as a taxi driver, he said, only on an occasional basis once every two to four weeks. He drove for a number of different people. He experienced difficulty doing the work and had to get out of the car to move around after each job, due to problems with his back. The plaintiff said that he last drove a taxi about two years prior to trial although he said that his memory on that was uncertain.
In 2005, due to his difficulty in obtaining employment, with the assistance of Mr Zadeh the plaintiff established a small supermarket on Prospect Road, called the Karoon Supermarket. He said that he did not have any particular physical difficulty in establishing the business, but would from time to time close the shop to go home and rest. The business was failing and he eventually closed the supermarket towards the end of 2005. It was not sold. The plaintiff ultimately lost money. That forms no part of his claim and the evidence was only led as evidence of an attempt by him to obtain employment and to mitigate his loss.
The plaintiff travelled to Iran to visit his family in mid 2006 and stayed there for some three and a half months. He returned in August 2006. He then formed the view that he required additional training to obtain non-physical work and studied for a Certificate III and Certificate IV in English at the Adelaide Tafe and completed those certificates in mid 2007.
He said that his activities at the time of trial consisted of doing some housekeeping, studying English online, and occasionally checking building sites and delivering items to sites for his friend Mr Zadeh who runs a construction business. He denied having been employed by Mr Zadeh. He said that he sometimes attended work sites to make sure the workers were doing their job, to pay workers, or to do other light tasks. He said that he received no payment, although Mr Zadeh paid for household expenses in their shared house.
He said that his intention was to study a bridging course at Flinders University and then go on to study Business Management, which was as he understood it, a full-time four year degree.
He had ceased undergoing any medical treatment other than occasionally taking Oxycontin when necessary, which is available to him through the public health scheme. As to future treatment, he had inquired about whether surgery would be of assistance, but upon receiving medical advice as to the prospects of a successful result indicated his reluctance to undertake surgery, and said in evidence that he would not consider having surgery.
Cross-examination of the Plaintiff
The plaintiff was subjected to a careful and detailed cross-examination by Mr James. The plaintiff asserted that he had performed little or no taxi driving in the period between the accident and the end of 2002. I have no doubt that the plaintiff made some errors in respect of his employment history. I observed him while he gave his evidence. I do not consider that he attempted to mislead the court in this respect. I have, however, accepted the evidence of other witnesses in some respects because of the plaintiff’s poor memory.
In cross-examination the plaintiff agreed that for a couple of months after the accident he had trouble walking, but said he had pushed himself to walk with the encouragement of his friends. He agreed with the proposition that after two months he was able to drive a car, saying “yeah, I think so”. He was asked whether there was a period after the collision when he could not drive and said that there was a period that he had to rest, but could not remember the exact period. He was asked whether it was a month or so, or a couple of days or somewhere in between and said, “maybe a couple of months, two months.” He said he had difficulty driving because of problems with his left leg, his back and neck. He could drive but not for long distances. He agreed with a proposition that from the time of the accident until he commenced employment at Viscount Plastics he had not done any work, and that he had done some taxi driving work after he left Viscount Plastics. He was asked, “for example, on your evidence, you hadn’t done any taxi driving before you started at Viscount Plastics had you?” and answered “no, I don’t think so”. That is inconsistent with the evidence of Mr Zadeh who said that the plaintiff had commenced driving towards the end of 2002. I prefer the evidence of Mr Zadeh in that regard.
The plaintiff’s personal injury particulars, filed in the Magistrates Court where this action commenced, were put to him. He agreed that he had said in that document that he had commenced a taxi driver training course on 22 September 2002, and had worked as a casual driver on fill-in shifts, on 22 February 2003, 12 March 2003, 5 April 2003, 30 April 2003, 2 May 2003, and 17 May 2003. He said that he drove on those dates only for a few hours. He said he received a small amount of money for doing that work but does not remember how much. He was asked:
QBut you were driving the taxi as an ordinary taxi driver weren’t you?
ANo.
QYou were travelling by yourself in the taxis and collecting fares were you not?
ASometimes.
When did the Plaintiff Commence Driving Taxis After the Collision?
The issue of the date the plaintiff commenced driving a taxi, and the extent to which he had worked prior to commencing at Viscount Plastics, assumed considerable significance in the trial.
It was put to the plaintiff that he had driven regularly and often, in effect as a full time taxi driver, from a time seven days after the collision. It was put to him that he had earned substantial amounts in the period from October 2002 through to December 2002. He said “I don’t remember honestly”. Specific dates were then put to him alleging that he was driving in late 2002 on a regular basis and he responded “I drove taxi in 2003”. He denied that he was driving on a full time basis in either 2002 or 2003.
In evidence he said that he drove occasionally, partly for training purposes. The evidence was that the taxi accreditation he received on 15 October 2002 was a trainee or interim accreditation. His full accreditation was not gained until January 2003. I have no evidence as to the difference, nor as to the process by which one transforms an interim accreditation into a full accreditation. I do not know whether a training period or a number of driving hours is required.
Documentary Evidence re Taxi Driving
The plaintiff was cross-examined about the name of his employer during the period in late 2002. He initially said that he worked for someone named Jerry and was cross-examined as to whether it might be Kerry. He conceded that it might be.
The defendant sought to tender certain documents relating to a taxi business operated by Mr Kerry Tsimopoulos, as business records. I received the documents de bene esse, subject to hearing submissions as to whether the documents were admissible at all, and if so, the weight to be attached to them.
The defendant tendered part of a schedule, prepared in July 2004, containing details of taxi drivers engaged at that time, and of drivers previously engaged by Mr Tsimopoulos. It recorded a Mr Ahmad R Maleksha as a driver. It contained information relating to that person, including his date of birth, his taxi accreditation number, and his address. It was an agreed fact that the date of birth was the same as that of the plaintiff, the taxi accreditation number was that of the plaintiff, and the address was the address at which he was living as at the date of the collision. Mr Tsimopoulos said that he would have obtained that information by a combination of seeing the taxi accreditation document, and information from the driver. I infer that the reference to Mr Maleksha referred to on the list of drivers is a reference to the plaintiff, or is at least based upon the plaintiff’s details. The different spelling of the name remains a mystery.
Mr Tsimopoulos purported to identify the plaintiff in court, not as the driver Mr Maleksha, but at least as someone Mr Tsimopoulos remembered as driving for him. The plaintiff was the only person of Middle Eastern appearance in court at the time. Mr Tsimopoulos had not seen the plaintiff for almost six years. Although Mr Tsimopoulos said that he had a reasonably good memory for faces, I was left with grave doubts about his identification of the plaintiff in court. Mr Tsimopoulos did not suggest that he was able to identify the plaintiff as the person referred to in the documents, nor as having actually driven taxis for him at any specific times.
The dates put to the plaintiff in cross-examination, suggested to be days on which the plaintiff had driven a taxi, were derived from an email sent by Mr Tsimopoulos to an investigator appointed by the defendant. The basis of the defendant’s cross-examination of the plaintiff, as to the monetary amounts said to have been earned by the plaintiff, was a summary document prepared by Mr Tsimopoulos. The email and the summary document were prepared by reference to “shift sheets” which were the hand written sheets prepared by each driver during the course of a shift, recording the job, the fare paid and so on. They are in the handwriting of the relevant driver.
The shift sheets had been destroyed. They were destroyed some time after Mr Tsimopoulos had been contacted by the defendant’s investigator, and after he had provided the email containing the dates upon which it was said that the driver, said to be the plaintiff, had driven. Mr Tsimopoulos said that he had ceased operating taxis in 2008 and the documents had been destroyed either at that time or at some earlier stage.
The summary document is a document prepared, Mr Tsimopoulos said, to enable him to monitor the takings of the drivers. Either he or his wife would have prepared the summary document which sets out fare takings, expenses, proportions paid to drivers and so on. It is in my view a business record. However the whole of the document was not tendered.
The accuracy of the summary document was attacked by Mr Bryant in cross-examination and there are a number of confusing aspects to the documents generally, including the use made of driver allocation numbers, a change in the driver number allocated to Maleksha, a suggested explanation by Mr Tsimopoulos that Maleksha might have been an itinerant worker, the fact that several drivers appear to have been allocated the same number, and the fact that part of the document was missing.
The defendant did not make discovery of the summary document prior to trial. The original could not be said to attract privilege. The defendant argued that the decision in Propend[13] is authority for the proposition that the copy of the document was not discoverable as it was produced for the purposes of litigation. It is not necessary for me to make any definitive finding on the applicability of Propend to a document of this type. I do observe, however, that Brennan CJ held:
Authority and principle thus combine to establish that, prima facie, copies of non-privileged documents are privileged if the copies are brought into existence solely for the purpose of obtaining or giving legal advice or solely for use in litigation that is pending, intended or reasonably apprehended. But the prima facie rule is subject to a qualification next to be mentioned. [14]
[13] Commissioner of Australian Federal Police & Anor v Propend Finance Pty Ltd & Ors (1997) 188 CLR 501.
[14] Ibid at p 509.
Brennan CJ went on to consider the qualification, holding that, if an original unprivileged document is not in existence, or its location is not disclosed or is not accessible to the person seeking to execute a warrant, (that being the circumstance in which the claim for privilege was made), and if no unprivileged copy or other admissible evidence is made available to prove the contents of the original, the privileged copy loses the privilege. Brennan CJ then went on to say:
To qualify legal professional privilege in the way I have proposed is to deprive a person who has only a privileged copy in his or her possession or power of any tactical advantage that the privilege and the absence of an unprivileged original would otherwise have conferred. But the privilege is not afforded in order to confer tactical advantages; it is afforded in order to facilitate the administration of justice.[15]
[15] Ibid at p 512-513.
The defendant’s counsel conceded that there had been no discovery of the document under an identifying description, even under the category of privileged documents as was required.[16] Indeed the description of the document, as identified by counsel for the defendant, was as an “investigator’s report”. That description was more likely to obscure its nature rather than alert the plaintiff as to a line of inquiry regarding a potential application for production of the document. I do not say that that was deliberate, but rather that was the effect of the misleading description.
[16] Kadlunga v Electricity Trust (SA) (1987) 43 SASR 313.
I accept that the email setting out the dates extracted from the shift sheets was privileged and was a communication for the purposes of litigation. The destruction of the shift sheets is important. They were destroyed, albeit perhaps innocently, after the date that inquiry was made, and at a time when Mr Tsimopoulos knew that the investigator he was dealing with was a member of the fraud section of the defendant’s insurer. The email communication discloses as much.
In my view, it was incumbent upon the defendant to ensure the preservation of the source documents so that an issue of this importance could be firmly established on the basis of source documents, rather than by relying on secondary evidence. The defendant’s insurer was conducting an investigation into what it regarded as a matter of fraud on the part of the plaintiff. If the handwriting on the shift sheets was of various drivers, or of a different driver, that would have conclusively established the matter in favour of the plaintiff. On the other hand, if the documents were in the plaintiff’s handwriting that would have been the end of the matter.
In Allen v Tobias[17] the High Court cited with approval the opinion of Sir Arthur Channell in The Ophelia (citation omitted):
"If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case".
[17] Allen v Tobias & Anor (1958) 98 CLR 367 per Dixon CH, McTiernan and Williams JJ at 375.
Although the original documents were destroyed by Mr Tsimopoulos, and not the defendant, in my view the defendant is left “without the corroboration which might have been expected in his case”.
Ultimately I am left in the position that there was unsatisfactory evidence from the plaintiff as to the extent to which he had driven taxis, and unsatisfactory evidence from the defendant in the form of secondary documents, which could not be tested against source documents, and which contained unexplained anomalies.
The evidence as to the extent to which the plaintiff had worked following the accident was important evidence. As I have said, the defendant’s case was that the plaintiff was working regularly over a sustained period. I am concerned at the nature and quality of the record-keeping. Whilst the documents, insofar as weight can be attached to them, purport to show earnings by the driver Mr Maleksha, the records would be equally consistent with interchangeable drivers coming in from day to day and using a single number or card. That could not be tested as the original cards could not be produced.
Accordingly, I am not greatly assisted in determining the extent to which the plaintiff worked, by reference to the evidence of Mr Tsimopoulos and the documents to which I have referred. I am prepared to admit the documents but, for the reasons outlined, can attach little weight to their contents.
In the face of the sworn evidence of the plaintiff that he did not drive in the period immediately following the collision, despite having some doubts about the plaintiff’s evidence, and more importantly on the basis of the sworn evidence of Mr Zadeh, whose evidence I accept, as to the plaintiff’s condition in the weeks following the collision, I find that the plaintiff would not have been able to drive a taxi, at least for some weeks following the accident. I find, consistent with Mr Zadeh’s evidence, that the plaintiff had started driving by December 2002. I do not consider it necessary to make a finding as to the explanation for the recording of all the amounts in question in the summary documents, against the name Maleksha.
Mr Zadeh’s Evidence
Following the collision Mr Zadeh attended at the hospital in a second ambulance. He returned to the hospital later in the day to visit the plaintiff but was not permitted to see him but visited him the following day. The next day he attended to collect the plaintiff and take him home. He said that the plaintiff was unable to walk and had to be taken from the hospital in a wheelchair. I accept that evidence.
During the period following discharge from hospital, Mr Zadeh and Mr Kowlaloos attended at the plaintiff’s house to assist the plaintiff with showering, meal preparation and housework. They shared the “duties” with Mr Kowlaloos attending in the afternoon and evening, and Mr Zadeh attending after finishing the afternoon shift at Electrolux where he worked, and remaining at the plaintiff’s house overnight. The assistance they provided does not sound in damages.[18] Nevertheless, the nature of the assistance provided gives some indication as to the level of the plaintiff’s disability at that time.
[18] See s 35A(1)(g) Wrongs Act 1936 (now s 58(1) Civil Liability Act 1936).
The plaintiff’s evidence as to his incapacity in the early stages was corroborated by Mr Zadeh. As I have earlier indicated, I was impressed by Mr Zadeh as a witness. I formed the view that he gave his evidence in a matter of fact, unembellished way. I accept him as a witness of truth. He described the plaintiff as being depressed and said that eventually he moved in with the plaintiff as he was spending so much time caring for the plaintiff that that was a more efficient course of action. He said that he and Mr Kowlaloos constantly encouraged the plaintiff into activity commencing with walking in order to have him return to good health and to assist in elevating his mood. He gave evidence that that process was successful, and, as I have indicated, by late 2002 the plaintiff was able to take up some taxi driving work.
The Medical Evidence
The plaintiff’s principal injury was to his lower back. MRI scans of the spine show that the plaintiff suffered from annular tears at the L4-5 and L5-S1 levels.
An MRI scan of the lumbar spine taken in October 2003 is reported as showing:
At L4-5 there is loss of signal from the intervertebral disc consistent with degeneration. There is a minor broad based disc bulge and there is a high signal on the T2 weighted scan suggesting an annular tear. There is no canal stenosis and the neural exit parameter are clear.
Dr Copley, the author of that report, also reported that there was a slight loss of signal from the disc at L5-S1 consistent with mild degeneration.
Dr Scroop reported on 11 September 2006, in relation to an MRI scan performed on that day, that there was an annular tear at the posterior central disc margin of L4-5, and mild generalised posterior disc bulge but no significant central epheremeral compression. She reported that there was a small focus of high signal intensity in the posterior central disc margin at L5-S1 consistent with an annular tear, together with mild generalised posterior disc bulge and mild facet arthrosis.
Somewhat unusually, although there was evidence that the plaintiff attended on a General Practitioner on a number of occasions, and of course had attended at the Royal Adelaide Hospital both immediately after the collision and on follow up occasions, there was little evidence as to those attendances. Other than brief extracts on specific topics, neither counsel tendered the Royal Adelaide Hospital notes, despite the fact that the notes had been produced on subpoena issued by the defendant.
The outpatient progress notes from the Royal Adelaide Hospital Physiotherapy Service[19] dated 2 December 2002, record that the plaintiff presented for physiotherapy on 30 October 2002, that is, almost three weeks after the collision. He complained of low back and left leg pain, with severe pain disrupting his sleep, limited movement in his leg and back, and a significant increase in pain if he sat for longer than 20 minutes. The notes record that:
Objectively he walked with a left sided limp, had limited lumbar flexion and extension due to pain, a positive left side straight leg raising test, and pain on palpation of the lower lumbar/sacral region.
[19] Exhibit D25.
He was advised to avoid aggravating activities such as sitting, and to delay returning to work as a taxi driver.
The notes record that the plaintiff had been late for a number of appointments and did not attend appointments on four occasions.
The notes also record the following:
Despite this, Mr. Malekshahi was observed by a staff member exiting a taxi after driving and walking with no gait abnormalities, which contradicts his presentation to physiotherapy.
However the staff member is not identified, was not called, and of course could not be cross-examined. Before I could take such information into account I would need to be satisfied that the staff member had in fact observed the plaintiff at all, and not some other person. I can attach no weight to that aspect of the notes.
Dr Ravindran, a rehabilitation physician, first saw the plaintiff on 17 January 2003. The plaintiff complained of pain in the back radiating down the back of the left leg to the knee. On examination he demonstrated a normal gait pattern. The plaintiff made complaints of pain upon testing of the range of spinal movement. Upon review one week later, Dr Ravindran examined a CT scan of the lumbar spine performed on 13 December 2002 which showed bulging of the discs at L4-L5 and L5-S1 levels, without evidence of compression of the theca or nerve roots. Dr Ravindran reported that clinical examination showed a marked restriction of mobility in the lumbar spine, but that the radiological and clinical features excluded disc compression at either of the noted levels as being the cause of the plaintiff’s symptoms. He concluded that the plaintiff had suffered a musculoligamentous injury to the lumbar spine, consistent with the history that the plaintiff had provided. He considered that the plaintiff’s level of pain and limitation of mobility made him unfit for labouring work. He described the plaintiff as being fit to return to work on light duties, performing largely sedentary work where he would be able to sit or stand from time to time. He considered that the plaintiff was fit to work part time only initially.
Upon review in February 2005 the plaintiff reported to Dr Ravindran that he had started swimming and exercising, and took Paracetamol or Nurofen as required for relief of pain. Dr Ravindran again tested the plaintiff’s range of movement. He considered that the plaintiff was suffering a permanent residual disability of the lumbar spine of 35%, and a 10% permanent residual disability of the left leg above the knee.
Dr Ravindran reviewed the plaintiff again in January 2008. He noted there was a continuation of the complaint of pain in the back, radiating down the left leg to calf level, with numbness in the lower back and left buttock and occasional swelling in the left knee. Dr Ravindran recommended that the plaintiff undergo a regular activity programme such as walking or swimming. He revised his assessment to one of a permanent level of residual disability in the lumbar spine of 10%, and a loss of working capacity due to his restrictions to undertake manual handling tasks, of 10%.
The plaintiff tendered reports of Mr Munyard, an experienced and well qualified orthopaedic surgeon. The first report was of an examination in November 2007 although Mr Munyard had initially seen the plaintiff in 2005 in relation to a complaint of pain in the right knee. Mr Munyard viewed an MRI scan of the lumbar spine performed in 2006 which showed mild disc dehydration and an annular tear at L5-S1. He described the prognosis as guarded. He also expressed the view that the plaintiff had a 10% disability of his lumbar spine and 10% reduction in his working capacity. He said that the plaintiff was not fit to carry out heavier duties such as heavy labouring.
Mr Munyard also gave evidence that in March 2008 he had reported that the plaintiff had signs, on MRI investigation, of a tear of the lateral meniscus of the left knee. The defendant argued that such an injury might preclude the plaintiff from heavy physical work in any event. He said that he had recommended an arthroscopy with intra-articular surgery on the left knee, due to a tear in the lateral meniscus, confirmed by MRI scan. He said that following such a procedure the plaintiff may be left with some residual incapacity depending upon whether there was any other damage seen at operation.
Mr Munyard said that an annular tear at L5-S1 would dispose a patient to attacks of back pain and discomfort associated with activity such as lifting, bending, walking and sitting and standing for too long. He agreed that people with such an injury should be advised to avoid heavy manual work. He did not consider that there was any diagnostic significance in a history that the plaintiff worked as a part-time taxi driver. He accepted the plaintiff’s account of symptoms and restriction of activities as being consistent with an injury of that nature. He suggested that the plaintiff might require occasional physiotherapy in order to alleviate acute symptoms, but that he did not need spinal surgery.
Mr Munyard said in cross-examination that putting aside the back issue, given the left and right knee meniscus tears it would be best for the plaintiff to avoid repetitive bending, twisting and squatting. It was conceded by the plaintiff’s counsel that the lateral tears of the meniscus in the left and right knee were not related to the accident, but, he said, rather were non incapacitating injuries which could be resolved by treatment.
Counsel for the defendant put to Mr Munyard that he obtained a history of the level of employment activities said to have been performed by the plaintiff, and that was consistent with the complaint of back and leg injuries. He then asked Mr Munyard to proceed on the basis of an alternative hypothesis, namely that the plaintiff drove a taxi from the end of October 2002 though November and December on a regular basis five days a week for shifts of up to 12 hours, although perhaps not driving for the entire shift. He was asked whether that caused him to alter his views or opinion. Mr Munyard said:
No, I don’t think so, because I mean, back pain is not a thing that you necessarily have all the time. It can occur out of nowhere and for no obvious reason, but then again it can occur because you have done a particular thing. So the fact that he was able to do sort of a light type job – if I put it like that – without too much trouble from his back, or not enough to stop him doing it, I don’t think that sort of negates the fact that he may well have injured his back in a motor vehicle accident.
The defendant relied on the evidence of Mr Bauze, also a well qualified orthopaedic surgeon. Upon examination of the plaintiff in October 2005 Mr Bauze elicited a history of pain in the left buttock to the knee, difficulty in sitting for long periods, occasional back spasms, and difficulty sleeping. Mr Bauze described the plaintiff as being rather evasive and giving vague answers. He expressed the opinion that as a result of the collision the plaintiff sustained a lacerated scalp, abrasions of the hands, bruising of the shoulders, a sprain of the cervical spine, a sprain of the lumbar spine and bruising of the left knee. He considered there was minimal impairment and no evident abnormality in the cervical spine, shoulders, arms or left knee. He considered it likely that there were some ongoing symptoms as a result of the sprain of the lumbar spine. He considered that the plaintiff required an exercise programme for his lumbar spine.
He expressed the opinion that there was a restriction in the plaintiff’s ability to carry out work duties, in that the plaintiff could not do heavy lifting, or repeated or prolonged lifting or bending. He assessed a 5% loss of function of the lumbar spine. He considered that there would be some persistent weakness of the lower back, but some improvement in symptoms with a self-managed exercise programme.
Mr Bauze said in evidence that he was relying on reports of the MRI scan. He considered that there was no real difference between the 2003 report and the 2006 report, with both reports noting degeneration of the lower two discs of the spine. He said, given the reference to an annular tear at L5-S1 in the second report but not in the first, it may be that that had occurred subsequently, or it may be that it was not picked up at the time of the first report.
Mr Bauze maintained his opinion that the plaintiff had suffered a sprain of the lumbar spine in the accident, but doubted the plaintiff had sustained a significant injury, if the plaintiff had been able to resume and continue working as a taxi driver on a full time basis within a couple of weeks of the collision. For reasons I have already outlined, I find that in fact the plaintiff commenced driving in about December 2002, rather than immediately after or shortly after the collision.
In cross-examination Mr Bauze agreed that having regard to his clinical assessment of the plaintiff, and the observations from the MRI scan, the plaintiff should avoid heavy labouring work, and avoid sitting in a taxi for long periods.
Mr Bauze was cross-examined about the fact that he had recorded in his report, although not in his notes, that the plaintiff’s brother had assaulted the driver after the collision. He was asked whether he was able to make any comment given that the plaintiff did not have a brother, and said “that would give me greater belief that he was lying to me.” The more likely explanation is a misinterpretation of the plaintiff’s account of the collision, and the events which followed.
The note of the plaintiff’s attendance at the Royal Adelaide Hospital physiotherapy department on 30 October 2002 was put to Mr Bauze. He was asked whether that was significant, assuming that there was no pre-existing back problem. He said:
Yes, I think it is. If he presented at 30 October, which is about two weeks, isn’t it, two weeks after the accident, and also that would be the expected gap when he wouldn’t be able to get to the physiotherapy department, that severe pain disrupting his sleep, limited movement in the leg and back, increase in pain when sitting for greater than 20 minutes. That indicates that the back pain was of moderate severity.
He was asked:
QDoes it assist in diagnosis?
AIt doesn’t assist a lot but it would also be consistent with an annular tear; it could be.
Assessment of Damages
The award of damages is subject to the provisions of s 35A of the Wrongs Act 1936 which was in operation at the date of the subject collision. The starting point for assessing damages is my acceptance that the plaintiff sustained an injury to his lumbar spine, including small annular tears at two levels, was unable to commence driving taxis for a period of some two months, and thereafter had a somewhat reduced capacity to sit for long periods, or to do heavy manual labour.
Non-Economic Loss
Mr Malek Shahi was aged 27 at the time of the collision. He had been in good health. Although there was evidence of an attendance by him at the Royal Adelaide Hospital prior to the accident as a result of suffering an assault, he denied there was any ongoing disability as a result of that incident, and there was no other evidence that there was. I find that any injury sustained in that assault did not persist, and has not affected the plaintiff’s physical ability or earning capacity.
The plaintiff’s ability to lead a normal life was significantly impaired by his injuries, for more than seven days. He therefore satisfies the threshold test for an award of damages under this head.
He suffered what was described as a musculoligamentous injury to his lower spine including small annular tears at L4-L5 and L5-S1, which I accept he suffered, based on the reports of radiological investigations, and the opinions expressed by the medical witnesses, particularly Mr Munyard. That has left the plaintiff with a residual disability of the lumbar spine of the order of 10%. I accept that the plaintiff suffers ongoing back pain, has some difficulty sleeping, and is restricted from heavy lifting and repetitive bending. He has some referred pain to his left leg. He has no ongoing neck pain. The symptoms in his knees are not related to the effects of the accident. It may be that there will be some resolution of the back and related symptoms, particularly in the event that the plaintiff undergoes a properly constructed course of physiotherapy. However, given the continuation of his symptoms for some years since the accident, some physical symptoms are likely to be permanent.
Taking into account the evidence of the plaintiff, which I accept, subject to the reservations I have expressed, and that of Mr Zadeh, and my findings in relation to the medical evidence, I assign 10 points for non-economic loss. The multiplier for an accident occurring in 2002 is $1,710 and accordingly I allow $17,100 under this head of damages.
Past Loss of Earning Capacity
I accept the evidence of Mr Munyard that even if the evidence showed that the plaintiff had returned to working as a taxi driver shortly after the accident, that did not affect his opinion as to the nature of the injury sustained by the plaintiff and his level of residual incapacity. It is common ground that the injury prevents the plaintiff from carrying out heavy labouring work.
At the time of the accident the plaintiff was not working. He had qualified as a taxi driver and received his certification shortly after the accident. The plaintiff’s taxation return in the financial year ending 2003 discloses a reported gross income of $2,491 (from which $669 tax was withheld) earned at Viscount Plastics. His taxation return for the year ending 30 June 2005 reports a net loss of $1,501 from the supermarket business, and in the year ending 30 June 2006, a net loss of $3,352. The only other source of income disclosed on taxation returns is payment of Commonwealth benefits. No income from earnings as a taxi driver has been reported. It is not clear from the plaintiff’s evidence, nor that of Mr Tsimopoulos, as to what arrangements were in place for the retention or payment of tax, nor as to the employment arrangements generally.
The effect of his counsel’s submissions was that he was entitled to an award of damages based on the loss of a net income of $321.40 per week following the loss of his employment at Viscount Plastics. I accept that he was having difficulty in performing that work by virtue of the injury to his back. I accept his account of the circumstances in which he lost that employment, namely after falling at work he disclosed to his employer that he had sustained a back injury, not at work but in an earlier accident, and that he was informed by his employer that he was no longer required. The plaintiff under cross-examination refuted the suggestion that the work at Viscount Plastics was temporary work only. However, it seems to me that the plaintiff would have been unlikely to continue in that employment in any event.
From that time he returned to carrying out some work as a taxi driver. He showed some enterprise in endeavouring to operate a business, without success. I do not regard the losses in that business as compensable. Whilst the plaintiff said that from time to time he would close the business and go home to rest, it is not clear on the limited information available, that that contributed to losses in the business. There was no accounting evidence called. Counsel for the plaintiff did not press a claim based on business losses. Following the failure of the grocery business the plaintiff returned to studies, initially undertaking further study with the intention of obtaining qualifications that could enable him to take up non-physical work.
He worked more as a taxi driver than he disclosed in evidence. It is peculiar that he in effect denied working as a taxi driver subsequent to the accident, except for what he called short periods of driving for training purposes, and yet had clearly disclosed to his solicitors that he had worked as a taxi driver from time to time as is evidenced by his particulars of injury to which I have referred. As I have said, I find that the plaintiff had returned to taxi driving work sometime in December 2002.
I consider that, whilst the plaintiff’s lumbar spine injury may have made it uncomfortable for him to work long shifts as a taxi driver, he could have performed that work, taking the opportunity, as he said he did, to get out of the car to stretch and move about after each job. His injuries may have prevented him from earning as much as he did in that employment, rather than preventing him from working in that employment at all. I bear in mind he has injuries to both knees which would make it difficult for him to engage in heavy work in any event. They are unrelated to the collision. That much is conceded.
In my view, the submissions made by counsel for the plaintiff as to the approach to assessing damages under this head are not persuasive. Indeed any mathematical approach to calculating the award is too speculative. Given the unsatisfactory state of the evidence I can only proceed on a broad-axe basis.
It is now just over eight years since the accident. Making an allowance for a period immediately following the collision when I accept the plaintiff was unable to work as a taxi driver, an allowance for his reduced ability to work as a taxi driver or in manual work, and the restriction on his ability to obtain employment, given that he was suffering from some residual disability which may have affected his ability to obtain work if competing for work against able-bodied applicants, but taking into account his short period of work at Viscount Plastics, his period of three and a half months away in Iran, and the likelihood that he would have taken up study to engage in non-physical labour in any event, I award a sum of $30,000. In addition, I award a sum of $2,700 for past superannuation losses calculated at 9%, making a total award of $32,700.
Future Loss of Earning Capacity
As I have said, I accept that the plaintiff has a residual disability in his lumbar spine which is permanent. The consensus of medical opinion is that the plaintiff should avoid work involving heavy lifting, repetitive bending, and sitting or standing for long periods. The range of employment open to him is thereby restricted. As I have said, with appropriate treatment after the conclusion of this matter there may be some improvement in his physical condition, but he will nevertheless be left with a small permanent disability.
He is now 35 years of age. Whilst an actuarial certificate was tendered showing that the loss of $1.00 per week for the plaintiff, to age 65 or prior death was $825 at the time of trial, having regard to the issues to which I have referred earlier, I do not consider that this is an appropriate case for an award based on actuarial calculations.
I find, as conceded by counsel for the plaintiff, that there are good prospects that the plaintiff will be able to obtain qualifications to enable him to obtain employment in a management or clerical area, and in so doing will ultimately be able to earn more than he would have as a taxi driver or manual worker. Indeed it seems to me that the plaintiff would have ultimately taken such a career path in any event. He has been deprived of some opportunity to earn an income during the period of time he will take to obtain such qualifications, and some allowance must be made for that.
Whilst I find it is likely that the plaintiff will obtain qualifications and obtain employment, as I have said, in a professional area of endeavour, he is still a relatively young man who, as a result of his back injury, has a range of employment involving physical activities now rendered unsuitable for him. As I have said, the award can only be on a loss of chance basis. I award the sum of $20,000, plus an allowance for superannuation of $1,800, making a total of $21,800.
Special Damages
There is an agreed item of medical expense, as yet unpaid, in the sum of $44.50. The defendant has already paid medical expenses of $2,623.70. The plaintiff must therefore reimburse the defendant the sum of $393.55, being 15% of that amount, given the finding of contributory negligence against the plaintiff.
Future Medical Expenses
There is a paucity of evidence which would enable any precise award of damages. I find that there may be a need for the plaintiff to consult a General Practitioner in order to obtain pain relief medication, and for assessment from time to time when there is an acute exacerbation of his symptoms. He may require episodic physiotherapy. I am not prepared to make any allowance for the possible cost of surgery, given the plaintiff’s specific evidence that he does not propose to undergo such surgery. The surgery recommended by Mr Munyard, in relation to the plaintiff’s left knee, does not relate to an injury sustained in the subject accident. I award a nominal amount of $750.
Interest
The only head of damages which attracts an award is that of past loss of earning capacity. The starting point is an award of interest at the rate of 6% for half of the period since the collision. I fix a lump sum of $7,850.
In summary:
1
Non-economic loss
$17,100.00
2
Past loss of earning capacity including superannuation
$32,700.00
3
Future loss of earning capacity including superannuation
$21,800.00
4
Special Damages
$44.50
5
Future medical expenses
$750.00
6
Interest
$7,850.00
$80,244.50
85% thereof
$68,207.80
Less monies to be repaid by the plaintiff
$393.55
$67,814.30
There will be judgment for the plaintiff in the sum of $67,814.30. I will hear the parties as to costs.
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