Murray v Collova - [2001] WADC 54

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MURRAY -v- COLLOVA [2001] WADC 54

CORAM: WISBEY DCJ

HEARD: 4-6 DECEMBER 2000

DELIVERED : 6 MARCH 2001

FILE NO/S: CIV 720 of 1999

BETWEEN: PHILIP PATRICK MURRAY
Plaintiff
AND
VINCENZO COLLOVA
Defendant

Catchwords:

Negligence - Highway - Collision between motor car and Main Roads Department truck reversing across highway in course of road repair work - Alleged negligence of truck driver - Contributory negligence of driver of car by driving in contravention of road work warning signs

Personal injuries - General damages for significant ankle injury - Assessment of loss of earning capacity

Legislation:

Nil

Result:

Judgment for plaintiff in the sum of $95,032.42 after reduction of 60 per cent for contributory negligence

Representation:

Counsel:

Plaintiff: Mr K S Pratt
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: Hoffmans
Defendant: Brian C Sierakowski

Case(s) referred to in judgment(s):

Wynbergen v Hoyts Corporation Pty Ltd (1998) 72 ALJR 65

Case(s) also cited:

Batty v Abov Services Co Pty Ltd & Anor 14 MVR 566
Cassar v Government Insurance Office (NSW) 12 MVR 447
Government Insurance Office (NSW) v Foot 12 MVR 455
Hayes v Czerkasow 14 MVR 541
Kagelaris v Hurley 15 MVR 443
Keating v Rechichi [1999] WASCA 97
US Shipping Board v Laird Line Pty Ltd (1924) AC 289

WISBEY DCJ: The plaintiff, Philip Patrick Murray, a truck driver and heavy machinery fitter and operator, was born on 30 July 1944. He claims damages for personal injuries sustained in a motor vehicle accident occurring on Great Eastern Highway 12km west of Kellerberrin at approximately 11.50am on 29 September 1993. Liability and quantum are in issue, and it must be said that it is unsatisfactory to be called upon to adjudicate on disputed factual issues which relate to an event occurring seven years ago. The adverse effect on recall and perception of factual issues by witnesses is obvious.

Liability

The statement of claim alleges that on the date and at the time referred to above the plaintiff was driving his Ford Fairlane sedan (the Ford) towing a trailer in an easterly direction on Great Eastern Highway approximately 12km west of Kellerberrin, and at that time and place a Main Roads Department Hino diesel truck (the truck) was parked on the northern side of a sweeping righthand bend. The plaintiff alleges that as he approached the truck it backed from the gravel shoulder on to the sealed surface and into the path of the Ford. He alleges that upon the truck "backing across the highway" he braked but was unable to avoid colliding with it.
The particulars of negligence alleged against the defendant are numerous, but in the main not apposite. In essence the gravamen of the plaintiff's complaints are that the defendant:
(a)should have done a forward U turn so as to position the truck on the southern shoulder, rather than backed across the highway;
(b)failed to keep any or any proper lookout when making the manoeuvre that he undertook;
(c)crossed a set of unbroken double white lines when it was unsafe to do so;
(d)failed to give any indication of his intention to reverse across the highway;
(e)made the manoeuvre from a position which was inherently unsafe because of restriction to his vision.
(f)reversed out into the path of the Ford.
The defendant admits backing the truck from the northern gravel shoulder on to the sealed surface but denies reversing into the path of the Ford, and specifically denies each and every particular of negligence pleaded by the plaintiff. The defendant asserts that the accident was caused by the negligence of the plaintiff in that he:
(a)drove at a speed excessive in the circumstances;
(b)failed to keep a proper lookout;
(c)failed to heed warning signs erected to face him indicating that road works were in progress;
(d)failed to take any or adequate steps to avoid the collision.
As the evidence unfolded, the critical issues for resolution were whether when the defendant commenced the manoeuvre referred to, he failed to keep a proper lookout and to observe the presence of the Ford; and whether it was inappropriate to make the manoeuvre from the selected position. That involves a determination of whether at the time the defendant commenced the manoeuvre the Ford was in a position to be seen by him, and if not whether that was attributable to the location selected for the manoeuvre. Obviously the resolution of those questions involves an examination and evaluation of the evidence.

The agreed evidence

The following documentation was received by consent:
P1Report of Dr Ecker dated 10.7.96
P2.1-8Book of medical reports
P3.1Sketch of accident locality
P3.2Sketch of accident locality identifying position of Main Roads Department vehicles at the relevant time
P3.3Sketch map showing the position of signs erected by the Main Roads Department at the approaches to the work area
P3.4Six photographs of approaches to scene of accident
In the event it appears that the parties were agreeing to the admission into evidence of Exhibits P3.1 to .3 without prejudice to the rights of either to produce evidence conflicting with information otherwise conveyed by those documents.

The plaintiff

The plaintiff was born in Liverpool and emigrated to Australia in 1965. Since that time he appears to have mainly lived and worked in the Goldfields, operating heavy machinery, and engaged in earthmoving, truck driving, and as a heavy machinery fitter. From about 1985 he appears to have operated on his own account driving a water truck engaged in dust suppression on gravel earthworks, and alternatively working as a heavy machinery fitter when work was not available for the water truck. He stated that he charged $60 an hour plus the cost of fuel and oil for operating the water truck, and as at date of trial it appears that he was getting about three days work a week for the truck. In respect of work as a fitter he was paid $25 an hour for the first nine hours and $31 per hour thereafter.
Immediately prior to the accident the plaintiff had been to Perth to collect spare parts for his truck, including a secondhand gearbox, three springs, an alternator, and possibly a power take off. He was returning to Boulder with those items in the trailer which did not have independent brakes. The plaintiff stated that when he was about 13 or 14km west of Kellerberrin he observed a sign at the side of the road indicating road work ahead, and a yellow Main Roads Department truck parked near the sign, both being on the lefthand or northern shoulder. The plaintiff said that there were two men standing near the truck, talking, and that they waved to him as he passed. His estimate was that was about 3½km from the accident scene. He stated that he was travelling at between 90 to 100km/h, slowed down upon seeing the sign, and when he did not observe any more signs increased to the speed previously referred to. The plaintiff stated that when he was about 250m away from the point of collision he observed the truck parked on the northern shoulder about a metre from the bitumen surface. The plaintiff "didn't take a lot of notice. It was just a truck parked there". He said that when he was about 80m or a little less from it, the truck started reversing on to the road. When the plaintiff saw the back of the truck crossing the bitumen he slammed on the brakes, the Ford's wheels locked up, and it skidded into the side of the truck.
The plaintiff stated that after the collision the defendant approached the Ford, said to him "I'm sorry mate I didn't see you there", and then helped assist the plaintiff from the Ford. It was at that stage that the plaintiff discovered that his right foot was badly injured. Two other people also approached the Ford, and the plaintiff was placed in the cab of a truck. At about that time coincidentally a doctor arrived at the scene and directed that the plaintiff be taken forthwith to the Kellerberrin Hospital where he received emergency attention whilst arrangements were made to have him flown to Perth. Before being evacuated to Perth he was spoken to by police.
In the event the plaintiff was transferred to Royal Perth Hospital where he remained for approximately six weeks until his discharge on 11 November 1993, and he stated that during the hospitalisation he was in considerable pain and underwent a number of extremely painful procedures, including the harvesting of skin and soft tissue from his inner thigh, and grafting to the ankle area. The plaintiff was left with a significant cosmetic disability.
The plaintiff was discharged from hospital on crutches and went to stay at his daughter's house in Perth because he was required to attend for outpatient treatment. He required Silver Chain assistance, and on return to Boulder hired a chalet in a caravan park for three or four months because it was easier to access than his home, where the floor was at a raised level and the showering facilities not appropriate.
The plaintiff stated that in or about March 1994 he was referred to Mr Sneddon, an orthopaedic surgeon with a special interest in lower limb surgery, who recommended a straightening procedure and ankle fusion to eliminate pain. At that time the pain state precluded the plaintiff from walking distances of any consequence, and he was obliged to use a walking stick. Mr Sneddon advised that he would be totally incapacitated for about six months post‑accident. The plaintiff declined to have the operative procedure at that time because of the economic consequences during the rehabilitation period. In the event he recommenced driving his water truck about 12 months post‑accident, although suffering significant pain whilst so doing. He claimed that function in the foot had not altered materially from that time until the present. The plaintiff stated that he had initially taken Panadol Forte for pain relief, but as at the date of trial only used it occasionally.
It was apparent from the plaintiff's evidence that he was a reasonably stoical individual and was having little in the way of medical attention.
The plaintiff's taxation returns for the years ended 30 June 1991 to 30 June 2000 were tendered in evidence and generally demonstrated income from his contracting activities and employment as a plant operator and fitter.
In cross-examination the plaintiff confirmed that he had sustained a crush injury to the right ankle when he was about 17, and although that left him with a significant deformity, it appears to have been of little functional consequence. He confirmed that he also had a long standing cardiac condition requiring periodical check ups, but not being otherwise incapacitating.
The plaintiff confirmed that the nature of his vocation required him to work at road construction sites, and that as a result he was cognisant of the purpose and importance of road works warning signs. He was adamant that prior to reaching the accident site he had only observed one sign which read "road work ahead", and that when he saw the sign he eased his foot off the accelerator, reducing speed by approximately 10km/h, but then increased speed when he did not observe any road works or further signs. It would appear that the reduction of speed would only have been for a few seconds. He claimed to have travelled a further 3 to 3½km before observing the truck with which he collided, and thought it was of a grey colour. His evidence was that he had already passed Hanlon Road when he observed the truck, although it is apparent that was no more than a reconstruction. He was adamant that he did not see a maintenance truck on the southern shoulder, a grader working in a spoon drain on the southern shoulder, or a multi wheeled roller on the southern shoulder east of the point of impact; and this notwithstanding that it was his evidence that he had a clear unobstructed view as he entered the slight righthand bend on Great Eastern Highway. He did not see a flashing amber light on the top of the cab of the truck with which he collided, and claimed that when he first saw the truck it was in a stationary position on the shoulder parallel to the sealed surface. He was not aware that the truck was loaded with gravel.
The plaintiff stated that he was aware that the general speed limit in the area was 110km/h, and that because he was towing a trailer he was limited to 90km/h. The plaintiff's recollection was that the Ford struck the truck at the point of the rear dual wheels. He denied the proposition put to him that when he first observed the truck it was already straddling the eastbound lane.
When cross-examined about the advice given to him by Mr Sneddon, the plaintiff confirmed that he was advised to have a tibial straightening and ankle arthrodesis because there was a very high chance of eliminating pain.
The plaintiff confirmed having made a statement to the police at the Kellerberrin Hospital following the accident (Exhibit D3) which is essentially consistent with his evidence save that in respect of his speed he indicated that he normally sat on 110km/h, the inference being that might have been his speed at the time. He had thought there was a possibility that he might get around the truck.
The plaintiff made reference to the fact that a person, whom he assumed was the Main Roads Department supervisor, was "pulling signs out of the side of the vehicle" the significance of which was not developed further, but which I suspect was designed to give rise to speculation that the signs previously referred to had been erected post‑accident.
When cross-examined as to why he had not undergone the operative procedure recommended by Mr Sneddon, the plaintiff again confirmed that it was for financial reasons, but added that it was also because a doctor in Kalgoorlie had told him to wait and see. Whatever the reason, the plaintiff has now made the decision to proceed with the surgery because his condition is not improving.
In re‑examination the plaintiff estimated that he was 250 to 260m away from the truck when he first observed it. When asked to address the reasons behind his delay in deciding to undergo the remedial operative procedure he said "Well, I initially thought, like a lot of things, if you ignore it, it will go away and it will get better. That's my outlook on life but I realise its not going to get better. I've got to do something about it and the financial side of it … I was silly not to have got it done earlier because me wife was working in them days and now she doesn't".

The defendant

The defendant, a contract bobcat operator and truck driver, was as at the date of the accident employed by the Main Roads Department in Northam. On the day of the accident he was with a team doing shoulder repair to the Great Eastern Highway at a spot between 10 to 12km west of Kellerberrin. His particular duty on the day of the accident was to drive the truck carting gravel from a pit located on a side track about 6km west of the road works, to the road works. He had done approximately six such trips before the accident. He confirmed that the necessary road work signs were in position 50 to 70m apart and located some 700m west of the site, the first sign being "Reduce Speed", the second being "Road Works Ahead", and the third being "50km/h". He stated that there were no other road works being carried out between the gravel pit and the worksite.
At the time of the accident the defendant had returned from the pit with a load of gravel and positioned the truck on the northern shoulder completely off the sealed surface. He checked his mirrors, checking both ways to satisfy himself that there were no vehicles approaching, and then started doing a 180 degree reverse turn. He was about halfway through the turn when he heard the screech of brakes, observed a cloud of white blue smoke, and something struck the truck. He did not immediately appreciate that it was a vehicle.
The defendant stated that the bare weight of the truck was about 6 tonne and it was carrying 8 tonnes of gravel. The truck was yellow, and at the time reversing lights, reversing beacons, and a flashing amber light on the roof of the cab, were operating. The defendant indicated that he would have been stationary for about 15 to 30 seconds before commencing the reversing manoeuvre. He estimated that he could see 400 or 500m behind him when he checked his mirrors, and he stated that at that time there were no vehicles on the road behind him.
There was another Main Roads Department truck stationary on the southern shoulder about 150m west of the truck, a grader approximately opposite the truck, and a roller on the southern shoulder some distance in front of the truck. All those vehicles were yellow and each was fitted with operating amber revolving lights.
The defendant stated that it was necessary to do a reverse U turn because the truck needed to be facing west on the southern shoulder. The truck was positioned east of the unbroken double white lines. The defendant estimated that when undertaking the reversing manoeuvre it took 45 to 60 seconds to reach the desired position on the southern shoulder, and he claimed that the manoeuvre being undertaken was the quickest and easiest way to achieve the purpose. After the accident he observed that some of the truck parts the plaintiff was carrying in the trailer had been flung from the trailer and had completely cleared the truck, being east of the accident site. He stated that from the stationary position he was in before commencing the reversing manoeuvre he had a clear view of the other maintenance truck and the roller.
In cross-examination the defendant confirmed that he was aware of the fact that people often failed to comply with the speed restrictions applicable at road construction sites. He confirmed that work was not being done on the sealed surface, and consequently and obviously there was no evidence to that effect. He pointed out, however, that it would be difficult to miss seeing a roller, grader, and truck, indicative of road work activity.
When pressed, the defendant expressed the view that the roller was about 50m east of the truck, and was very visible. He estimated that some 20 to 30 seconds elapsed between commencing to reverse and the collision occurring, and that he would have had a view of eastbound vehicles for about 15 seconds of that time, the view gradually reducing during the reversing manoeuvre. He later corrected this to 10 to 15 seconds. He stated that he reversed approximately 7m before reaching a position where the rear wheels entered the sealed surface and the truck could be put on full lock. He estimated that it would take 4 to 5 seconds to travel that distance, and a further 15 seconds to reach the position the truck was in when the accident occurred. He was adamant that the complete manoeuvre would have taken 45 to 50 seconds, and stated that a forward three point turn would take double that time.
Notwithstanding strenuous cross-examination, and the use of mathematical example, the defendant was adamant that it would have taken 20 to 30 seconds to reverse the truck from its stationary position on the northern shoulder to the position it was in when the accident occurred. The defendant stated that it would have taken 5 to 10 seconds from the time he commenced reversing to the point where he lost vision to the west down Great Eastern Highway.

Stuart Estcourt

Senior Constable Estcourt was as at 29 September 1993 stationed at Northam, and on the day of the accident was on patrol in a marked police sedan travelling to a point just east of Kellerberrin. He recalled passing through a work zone approximately 10 to 12km west of Kellerberrin, and stated that he observed the required signs in place, being a reduce speed sign, a road works in progress sign, and a 50km/h sign, with a release sign east of the work zone. The three signs first referred to were about 50m apart, the release sign being approximately 2km further on. He passed through the road works site at about 9.30 to 10.00 am and was on his return trip just before midday when he received radio information of the accident. He stated that the bend where the accident occurred was a constant large radius bend, and visibility was clear for 200m approaching the bend or in the bend.

On reaching the accident scene Constable Estcourt noted inter alia truck parts on the roadway, including a leaf spring and truck differential, which were too heavy to be manually shifted.
Constable Estcourt confirmed having completed the attending officer's report of road traffic accident tendered in evidence (Exhibit D4) which recorded the assessment made by him at the scene of the accident. It recorded the distance from Hanlon Road to the commencement of the skid marks left by the plaintiff's vehicle was 158m, and as the skid marks were approximately 60m in length, the distance from Hanlon Road to the point of impact was 218m. He confirmed that the sketch plans (Exhibit P3.1 to .3) accurately reflected what he had observed at the scene. Constable Estcourt confirmed that the sketch on Exhibit D4 showed that the truck was positioned at a slight angle to the perpendicular, the front of the truck still being on the northern shoulder, and the rear slightly south of the centre lines. He stated that the point of impact appeared to be a couple of metres east of the point where the continuous double white lines stopped, and unbroken and broken lines commenced. He stated that when he arrived at the accident site the orange light on the cab of the truck was still operating and clearly visible.
Constable Estcourt indicated that he had the authority of the hospital to speak with the plaintiff, and that he formed the view that the plaintiff was capable of speaking to him.

Desmond Roy Sturgeon

At the relevant time Mr Sturgeon was employed as a machine operator with the Main Roads Department in Northam, and was operating the roller at the site. He stated that he was operating on the southern shoulder, and was travelling east and west over a distance of 50 to 100m. He stated that Nigel Goode and himself had positioned the necessary signs required to be displayed where road works were in progress.
Immediately prior to the accident Mr Sturgeon observed the truck pull on to the northern shoulder and then reverse slowly across the road, the hazard lights having been activated. Mr Sturgeon estimated that he was 25 to 40m away from the truck at the material time, and was proceeding towards the truck. Mr Sturgeon said "I saw a white vehicle, a white flash and a puff of smoke, like he'd applied the brakes and he has hit the brakes harder and locked the brakes up. He skidded into the truck and he hit the truck at a force that something came over the top of the truck". Mr Sturgeon observed several road trains approaching from the east, and flagged them down. He described the accident as a horrendous experience. He confirmed that at the time of the accident the position of the Main Roads Department vehicles was as indicated on Exhibit P3.2. Mr Sturgeon transported the plaintiff to the Kellerberrin Hospital and stated that on the journey to the hospital the plaintiff claimed not to have seen the road works signs.
It was put to Mr Sturgeon in cross-examination that because of the bend in the road his vision to the west was limited to 40 or 50m and he seemed to accept that, although he did state that he could see Hanlon Road from where he was.

Nigel Paul Goode

Mr Goode was as at the date of the accident employed by the Main Roads Department as a ganger in charge of a works crew, and was supervising the work crew at the accident site. He stated that they were involved in shoulder maintenance and re‑sheeting which activity involved dragging gravel material up to the edge of the road to fill the edge of the road, and carting and depositing further gravel and grading and rolling it out to provide a stable shoulder. He stated that they commenced work at about 7.30 to 8.00am and that the first task performed by Mr Sturgeon and himself was to put out the necessary road construction signs, being three in number, spaced approximately 75m apart on the approach to the road works.
He stated that at the time of the accident he was sitting in a Mitsubishi crew cab works truck parked on the southern shoulder slightly west of Hanlon Road, doing paperwork. His truck had an orange rotating beacon operating on the cab, and was clearly marked as a maintenance truck. Mr Goode confirmed that he was the person that prepared the sketch maps (Exhibit P3.1 to .3). He confirmed that all work vehicles at the site had rotating beacons operating at the relevant time.
It is apparent from Mr Goode's evidence that the accident occurred approximately 200 to 220m east of his vehicle, and that he had an unrestricted view of the accident site. His evidence was that from that position he had a clear view of the whole worksite, and could also see approximately 200m to the west.
Mr Goode gave evidence that the sealed surface of Great Eastern Highway was 7 to 8m wide.

Findings of fact on liability

The evidence is eloquent of the fact that the necessary road work signs were appropriately positioned both west and east of the road works, and that an observant driver approaching the road works would have been aware of the potential traffic hazard constituted by the works, and of the necessity to drive at a speed which enabled him to take appropriate steps to cope with any situation that was likely to present itself.
I do not accept the plaintiff's evidence that he observed a "road works in progress" sign near a Main Roads Department truck, and two men standing by it. It is improbable that there were other road works in progress in the immediate locality, and the plaintiff's evidence is entirely inconsistent with the evidence of all the Main Roads Department employees whose evidence I accept as to the location of signs and the position of vehicles at the material time.
I have considerable difficulty accepting that the plaintiff failed to see Mr Goode's vehicle, the roller, the grader, and the road work signs. I think it is probable that he saw all those things, but failed to reduce his speed or take appropriate steps in the situation that presented itself. Generally I found his evidence unconvincing, unreliable and improbable. I place no reliance upon it.
In his statement to the police the plaintiff indicated that he usually drove at 110km/h, and I have little doubt that he was travelling at about that speed on this occasion. Absenting the road works, that speed was clearly excessive having regard to the fact that he was towing a heavy laden trailer that did not have an independent braking system. Having regard to the road works it was reckless. The plaintiff failed to observe the presence of the defendant's truck until he was so close to it that because of the speed of the Ford it was impossible to bring it to a halt before a collision occurred.
The real issue is whether the plaintiff was the author of his own misfortune, or whether the defendant was negligent in reversing across Great Eastern Highway when by reason of the proximity of the Ford it was unsafe to so do. That involves a determination of whether the defendant was keeping a proper lookout and should have observed the approach of the Ford as he was about to reverse the truck; and/or if he could not see the Ford whether that was because he selected an inappropriate place to carry out the reversing manoeuvre.
The defendant's evidence was that he checked his rear view mirrors to make sure that there were no vehicles approaching and so satisfied himself before he commenced the reversing manoeuvre. I accept his evidence that he did check for oncoming traffic. It is unlikely that an experienced truck driver engaged in the activity in which the defendant was engaged, would commence the manoeuvre that he did without checking to satisfy himself that there were no approaching vehicles. That does not mean that the Ford was not there to be seen. Its colour would not make it particularly conspicuous; it would have come into vision rapidly; and the defendant's vision would have been compromised by the fact that he was only using the rear view mirrors.
It is my finding that the Ford was travelling at approximately 110km/h which reduces down to 30.55m per second. If the defendant's vision to the west was for a distance of 500m (his assessment was 400/500m) the Ford would have taken somewhere between 15 to 20 seconds to cover the distance from where it came into view to the point of collision, having regard to the fact that it was under heavy braking for the final 60m.
The defendant estimated that 20 to 30 seconds elapsed between the time he commenced to reverse and the moment of collision, and he stated that he had a view to the rear for about 10 to 15 seconds of that time, although his evidence as to that is necessarily reconstructive.
Having regard to the foregoing matters, I am satisfied on the balance of probability that at the time the truck began to encroach upon the sealed surface of the highway, the Ford was in a position to be observed.
In the circumstances the plaintiff has established that the defendant failed to keep a proper lookout.
I am also satisfied that the defendant was negligent in carrying out the reversing manoeuvre when he did. The vision to the west and east was somewhat restricted by the curve in the road, confirmed by the fact that it was a no passing area.
The plaintiff having established causative negligence by the defendant, it is necessary to consider the question of contributory negligence. As I have indicated I am satisfied on the balance of probability that the plaintiff was travelling at a grossly excessive speed, ignored the road works warning signs, failed to keep a proper lookout, and failed to exercise proper control over the Ford. It is therefore necessary that the plaintiff's claim be reduced to such an extent as appropriately reflects his contribution to the accident. As Hayne J said in Wynbergen v Hoyts Corporation Pty Ltd (1998) 72 ALJR 65 at 68:
"No doubt the making of the apportionment which the legislation requires involves comparison of the culpability of the parties, ie, the degree to which each has departed from the standard of what is reasonable, (Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494; Pennington v Norris (1956) 96 CLR 10 at 16) but that is not the only element to be considered. Regard must be had to the 'relative importance of the acts of the parties in causing damage' (Podrebersek (1985) 59 ALJR 492 at 494) and it is 'the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination' (Podrebersek (1985) 59 ALJR 492 at 494)."
The defendant was performing the duties of his employment, and was cognisant of the location of the signs that had been positioned to give users of the road notice of the work in which he was engaged. He was to an extent entitled to believe that drivers of vehicles would approach with appropriate caution. In the event that was not the case with respect to the plaintiff. The plaintiff's conduct as outlined was clearly more culpable that that of the defendant and it is my finding that his damages should be reduced by 60 per cent to reflect his breach of duty of care.

Quantum

There is no dispute but that the plaintiff sustained a significant injury to his right ankle. The orthopaedic surgeon, Mr Witherow, described the nature of the injury in his report of 28 November 1994 as a grade 2 open fracture dislocation of the ankle involving both the medial and lateral malleolus with a wound approximately 10cm x 10cm overlying the fibular fracture.
Mr Witherow reported that the plaintiff was taken to theatre on 29 September 1993 for wound debridement and internal fixation of the medial malleolar fracture. The plaintiff required further wound debridement on 1 October 1993, and on 7 October 1993 a left gracilis free flap graft over the wound. Further split skin grafting was performed on 26 October 1993. As has already been indicated the plaintiff was discharged from hospital on 11 November 1993 and was readmitted on 3 December 1993 for removal of the screws from the right ankle. When seen in the outpatient clinic on 14 January 1994 x‑rays showed the fracture to be solidly united, and that position was confirmed on 11 March 1994.
The orthopaedic surgeon Mr Sneddon saw the plaintiff on 25 March 1994 and in a report dated 6 February 1996 described the injury in simple terms as a severe open fracture and dislocation of the right ankle requiring extensive surgical procedures. Mr Sneddon referred to the fact that the plaintiff had a long standing varus deformity of the tibia, and recommended a realignment procedure and ankle fusion. He stated that the plaintiff was not then in a position to go ahead with the surgery, but felt that he might have it done in 1995.
In a report of 30 April 1996 Mr Sneddon noted that realignment of the tibia was necessary to compliment the ankle fusion.
On 2 July 1998 Mr Sneddon reported that there had been no change in the plaintiff's position in that he experienced pain if he stood or walked for more than an hour at a time. He again recommended tibial straightening and ankle arthrodesis. He stated that the plaintiff claimed to have no difficulty coping with his work as a water truck driver and was able to handle as much work as was offered to him. Mr Sneddon assessed the permanent disability as being of the order of 30 per cent of the right leg below the knee.
In his final report of 21 November 2000 Mr Sneddon expressed the view that the plaintiff would be unable to work as a fitter, and stated that the costs involved in realigning the tibial deformity and performing an ankle arthrodesis would be in the order of $1,500, with anticipated hospitalisation of three to four days.
In evidence Mr Sneddon confirmed the opinion expressed in his various reports. He stated that the operative procedures he had recommended had a very high success rate, and that the likelihood was that following surgery the ankle would be pain free, and the plaintiff would be able to engage in truck driving and could probably work as a mechanical fitter and plant operator.
Mr Sneddon was of the view that following the arthrodesis the plaintiff would be off work for a period of between three to six months, but appears to have thought the likelihood was that it would be closer to three months. When asked whether it would have been advisable for the plaintiff to have undergone the arthrodesis in 1994 Mr Sneddon stated "From the point of view of discomfort and pain, yes, but on the other hand no harm has been done in that he has not jeopardised his health as far as his leg is concerned".
The plaintiff was 49 years old at the date of the accident when he sustained a very significant orthopaedic injury of the right lower limb which has required complicated operative procedures and which still requires remedial intervention. I have no doubt that particularly in the acute phase of the injury and for some time thereafter the plaintiff experienced significant pain and incapacity. Also that there have been ongoing symptoms which have impinged upon his enjoyment of life and placed limitations on his physical activities. There is also the cosmetic factor. The fact that he has elected not to undergo the remedial procedure which will eliminate ongoing pain is, however, indicative of the fact that he has been able to adjust to and accommodate his accident caused disabilities. It must also not be overlooked that the plaintiff had a longstanding varus deformity to the right lower limb, although it does not appear to have been particularly incapacitating. Taking all these matters into account I would assess the plaintiff's disability as being of the order of 22 per cent of a most extreme case, and as a consequence I assess general damages for pain, suffering and loss of amenities in the sum of $49,500.
Because of the nature of the plaintiff's work pre‑ and post‑accident the task of assessment of past economic loss and loss of earning capacity poses more than the usual degree of difficulty, necessarily involving judgment rather than calculation, although that judgment has to be made against the economic matrix. The history of personal exertion earnings disclosed in the tax returns is as follows:

Schedule of Income

Tax year	Taxable income	Main source of income
30.6.91	$45,833.00	Boral Resources (driver) Brambles (dozer driving) Byrnecut Mining (fitter) Skilled Engineering (fitter)	$ 1,664.00 $21,420.19 $ 380.00 $ 1,206.00
Eveready Earthmoving (driving) Own business (turnover $1,824.00)	$ 3,882.00 $28,552,19 $ 1,324.00
30.6.92	$37,640.00	Skilled Engineering (fitter) Bellway (driving) Capewest Group (foreman/& fitter)	$ 206.00 $ 3,204.00 $19,999.00 $23,409.00
Business income (turnover $48,354,00)	$17,388.00
30.6.93	$51,302.00	Capewest Group (foreman/fitter)	$28,235.00
Business Income (turnover $39,895.00)	$24,458.00
30.6.94	$1,209.00	Business income (turnover $12,210.00)	$ 3,168.00
30.6.95	$46,347.00	Business income (turnover $103,892.00)	$46,247.00
30.6.96	$44,290.00	Business income (turnover $83,628.00)	$44,228.00
30.6.97	$17,573.00	Hampton Transport (driver)	$ 4,495.00
Business income (turnover $40,198.00)	$13,022.00
30.6.98	$68,514.00	Hampton Transport (driver)	$ 1,974.00
Business income (turnover $117,828.00)	$66,701.00
30.6.99	$38,490.00	Business income (turnover $54,436.00)	$38,480.00
30.6.00	$28,818.00	Zadella Holdings Pty Ltd	$ 1,045.00
Business income (turnover $67,180.00)	$27,756.00

In the year ended 30 June 1991 the plaintiff had a gross income from personal exertion of approximately $30,000 derived from work as a fitter and truck and dozer driver. In the year ended 30 June 1992 he had a gross income of $40,797 from his activity as an employed fitter and foreman and from his business as the operator of a water truck. In the year ended 30 June 1993 he had a gross income of $52,693 of which $28,235 came from his employment as a foreman and $24,458 from the operation of his own business. In the year ended 30 June 1994, being the year of the accident, he had a taxable income of $1,209, having earned a net $3,168 from his business. In the year ended 30 June 1995 he had a taxable income of $46,347 from his own business, and in the year ended 30 June 1996 a taxable income of $44,290. In the year ended 30 June 1997 he had a taxable income of $17,573 of which $4,495 came from work as a driver with Hampton Transport and the balance from his own business. In the year ended 30 June 1998 he had a taxable income of $68,514, in the year ended 30 June 1999 a taxable income of $38,490, and in the year ended 30 June 2000 a taxable income of $28,818 substantially from his own business. From 1 July 2000 until trial it appears that he was working 10 hours per day three days per week at a rate of slightly in excess of $60 an hour so that in the financial year ended 30 June 2001 it would seem that his taxable income will be of the order of $50,000 to $60,000.
The plaintiff indicated in evidence that his optimal vocational position results from his truck driving activities, but that when work is not available for his water truck he would if able, seek supplementary work as a fitter and/or plant operator.
I am satisfied that because of the level of his business activities in the years ended 30 June 1995, 1996, 1998 and from 1 July 2000 to the present time it is unlikely that he would have pursued much in the way of vocational activities, other than that which he undertook. There can be no doubt, however, that the injuries received in the accident have resulted in a reduction in earnings in the years ended 30 June 1994, 1997, 1999 and 2000.
Doing the best I can I would assess his gross loss before tax during the year ended 30 June 1994 in the sum of $45,000, in the year ended 30 June 1997 in the sum of $31,500, in the year ended 30 June 1999 in the sum of $20,000, and in the year ended 30 June 2000 in the sum of $30,000. After a deduction for tax that would have been payable on the gross loss when added to the other income earned in each of the years concerned the net loss is approximately:
Year  Net Loss
1994  $32,000
1997  $17,000
1999  $10,000
2000  $17,000
$76,000
I would allow a further $24,000 covering some small reduction in earnings in the other years.

The past economic loss is therefore $100,000. In addition I would allow interest thereon at 3 per cent for 7 years 159 days amounting to $22,306.85.
The plaintiff seeks a component for loss of superannuation benefits which by reason of the undefined nature of the loss of capacity is impossible to quantify arithmetically. I would allow $5,000 to cover this component.
The evidence relating to gratuitous services is too imprecise to enable financial quantification thereof, and in any event it would not have exceeded amount D in s 3D of the Motor Vehicle (Third Party Insurance) Act.
In respect of future economic loss the evidence establishes that following the arthrodesis procedure the plaintiff will be able to undertake most of the vocational activities that he would be expected to perform but for the accident. There will, however, be a loss of capacity for three to six months following the operative procedure, and some small ongoing reduction of capacity. I would allow $45,000 to cover the future loss.
It is necessary to allow a sum to cover the operative procedure being a surgery component of $1,500 together with additional hospitalisation and incidental expenses. I would allow $3,000 to cover future medical expenses.
Special damages have been agreed at $12,774.20.
The final award is therefore:
General damages  $ 49,500.00
Past economic loss  $100,000.00
Interest on past loss  $ 22,306.85
Loss of superannuation benefits         $    5,000.00
Future loss of capacity  $ 45,000.00
Future medical expenses                   $    3,000.00
Special damages  $ 12,774.20
$237,581.05
After a reduction of 60 per cent for contributory negligence the plaintiff is entitled to judgment in the sum of $95,032.42.