Newton v Hill No. DCCIV-98-41409

NEWTON v HILL
[2000] SADC 53

Judge Bishop

Civil

In this action, Kelly Anne Newton (“the plaintiff”) claims damages for negligence from Sioux Hill (“the defendant”) in respect of right ankle and left knee injuries that she sustained in a motor vehicle accident which occurred about 1.00 a.m. on Friday, 11 November 1994 in Boandik Terrace, Mount Gambier. At the time of the accident, the plaintiff was a passenger in her Datsun sedan which was being driven by the defendant. Approaching a right-hand bend in the road, wheels of the vehicle mounted the left-hand kerb. The defendant attempted to correct that manoeuvre by veering sharply to the right, causing the vehicle to roll over a number of times.

The pleadings

Against the defendant, the plaintiff has pleaded excessive speed; failure to brake, stop, slow down, swerve or otherwise manoeuvre, control or direct the vehicle; attempting “excessively sharply” to veer to the right; driving without any proper lookout; and driving without due care or attention. The plaintiff has also pleaded that the defendant was negligent in that she drove the vehicle,
“whilst not the holder of an appropriate driver’s licence and in circumstances where she had no or insufficient driving training or experience.”

In her amended defence, the defendant has pleaded a number of defences, including volenti non fit injuria, joint illegal enterprise, no breach of duty in the circumstances and contributory negligence.

The evidence
About the accident, five witnesses (including the plaintiff) gave evidence for the plaintiff; the defendant also gave evidence. I shall refer to that evidence.
The plaintiff was then 17 years and one month old, unemployed and residing in a flat in West Street, Mount Gambier, with a former school friend, Miss Olivia Case. Each girl owned a motor vehicle and held a provisional driver’s licence. For a couple of weeks, the defendant, her baby daughter and boyfriend, Mr. Michael Whitehead, had also been living temporarily in that flat. The plaintiff had only formally met the defendant a couple of weeks before the accident (T81). While she did not know the defendant’s age, she “assumed” that the defendant was much older, because she had a child, “she also acted older” and the child’s father (Michael Heritage, now deceased) was older (T83, 84). (In fact, the defendant was then 18 years and 8 months old, about one and a half years older than the plaintiff.)
During the day (Thursday) preceding the accident, the plaintiff, Miss Case, the defendant and Mr. Whitehead had driven about 40 kilometres to Carpenter Rocks in the plaintiff’s Datsun sedan. In her evidence, for most of that outing the defendant had driven the vehicle. When somewhat belatedly (in further cross-examination after re-examination) it was put to her that Mr. Whitehead had driven ‘a significant part’ of that journey, she replied, “I don’t believe so” (T450). Both the plaintiff and Miss Case drank alcohol during that outing.
In the plaintiff’s evidence, the defendant had previously driven her vehicle, “Probably two or three times .... just basic errands”, when she was also in the car (T81, 85, 87). She had found the defendant to be a competent driver (T87). She had also previously seen the defendant driving Miss Case’s car, “once or twice” (T86) and “once or twice” driving the car of Michael Heritage (T81) (who was a cousin of Miss Case). On those occasions when she had seen the defendant driving motor vehicles, the plaintiff could not recall having seen “P” (provisional) or “L” (learner) plates there displayed (T87, 88); nor could she recall whether the “P” plates had remained displayed on her vehicle when the defendant drove it on the Thursday (T151, 182). In her evidence (T88),
“I believed [the defendant] had a full licence and she never said she didn’t at the time she drove either of our vehicles.”
(My emphasis.)

Her belief in that regard was based upon having previously seen the defendant driving around Mount Gambier, having driven with her (“she was a better driver than me”) and her age (“old enough”) (T88). She also recalled an occasion when the defendant had consumed alcohol and driven, which should not have occurred unless the defendant were fully licensed (T183).

After returning to Mount Gambier from Carpenter Rocks, the plaintiff and Miss Case continued drinking alcohol with friends at the flat; the defendant was also there. According to the plaintiff, she did not there see the defendant drinking alcohol; nor had she seen her drinking alcohol at Carpenter Rocks. Late that night, in the plaintiff’s car the defendant drove the plaintiff and Miss Case to a local night club named Javed’s. Both the plaintiff and Miss Case were then very intoxicated with alcohol. The plaintiff has only a ‘patchy’ memory of events which then occurred (T147, 148). To her, the defendant “appeared normal”. She did not think that the defendant had been drinking (T95).
The three girls remained at Javed’s for only about five minutes. Miss Case stayed outside “talking to someone” (T98). After the plaintiff and defendant returned to the car, they departed, with the defendant still driving, the plaintiff sitting in the front passenger’s seat and Miss Case sitting behind the defendant. In the plaintiff’s evidence (T100):
“It’s all pretty blurry, pretty - I remember bits and pieces. I just remember a car was following us and we were just driving. .... We weren’t going fast or anything. I thought she was just trying to just drive around and see if these people you know, would keep following us.”
(My emphasis.)

She remembered driving along Pick Avenue and Crouch Street and turning into Boandik Terrace. Until then, to her the defendant appeared to be driving ‘appropriately’ (T101). Her evidence continued (T102):

“As we turned on to Boandik Terrace I started to get a little bit worried because we started getting a bit faster as we got up. .... I can’t remember if I was saying anything, but I just started to - I was turning around and looking at the car following us and I was just - I was anxious. I can just remember that we were just starting to get a bit fast. .... And it all happened very quickly. I seen the corner coming and I just sort of put my legs up and held the grip thing and just covered my face and just felt flipping and bumping and it all happened in like half a second it felt like.”
(My emphasis.)

She described the right-hand bend where the accident occurred as,

“a sweeping bend, but it was also notorious for having people going over into the sink hole and car crashes there and it can just be a bit tricky if you come into it too fast” (T102).
(My emphasis.)

She began to panic, “because we were going too fast” (T102). She was not aware of any braking of the vehicle as they approached the bend. She was expecting the car to slow down when it reached the bend, but it did not do so (T103). Although she could not remember if she had said anything to the defendant as they drove along Boandik Terrace, she denied having encouraged her to travel at an excessive speed (T103) and did not remember feeling any concern before realising that the accident was going to happen (T451).

In describing movement of her legs to protect herself, “just as we were practically right at the corner, when I knew that we were going too fast” (T104), the plaintiff remembered pushing her knees against the dashboard (T104). She was not sure whether her feet were also resting on the magazine rack underneath the dashboard. The speed limit in Boandik Terrace was 60 k.p.h. While she was not exactly sure of their fastest speed there, in her evidence (T105),

“I know we were going fast, faster than the speed limit, because that’s when I started to feel scared. .... Probably 15 k.p.h., maybe. .... just had the impression that we were going probably not quite 80, wouldn’t have been going 80, I know it was over [60].”
(My emphasis.)

Had she known that a learner’s permit which the defendant previously held had expired about four days before the accident and, had she thought that the defendant was in any way affected by alcohol, then she would not have permitted the defendant to drive her car (T136). (A learner’s permit authorizes an unlicensed person to drive a vehicle on a public road if accompanied by a qualified driver.)

When, in cross-examination, it was put to the plaintiff that she had seen the defendant drinking [alcohol] before the defendant drove them to Javed’s, she replied, “No, I can’t remember her drinking” (T161). The plaintiff had been interviewed by an insurance investigator (Mr. Larcombe) on 7 February 1995. (That record of interview was here tendered (exhibit D8).) She here agreed that she had told Mr. Larcombe that, at the flat on the Thursday night,
“I don’t think Sioux had .... Sioux didn’t have very much to drink, she sort of .... I think she only sort of just had a few beers and she wasn’t drunk” (T167).
(My emphasis.)

That response she here explained as having been derived,

“from what I’ve been told afterwards. I was told that she may have been drinking down at the pub. .... Because everyone had told me later that she had been drinking [at the flat]” (T168).
That explanation she also consistently here gave for having told Mr. Larcombe (with my emphasis) that, “I think she might’ve had a stubbie .... a few stubbies or something”, “I think she was drinking them from a glass mainly .... see I can’t remember”, “I don’t know for sure but she didn’t have very much to drink because she was .... you know she wasn’t drunk or anything, she was just sort of ....”, “I think I remember seeing her have like you know, with a drink. I can’t remember, there was just so many things happening that night” and that, in assessing the defendant’s sobriety on a scale of slightly/moderately/grossly/not affected at all, the defendant was “Slightly affected” (T170-178). That last response she had made to Mr. Larcombe because (she here explained),
“after the car crash I had learned through somebody that her blood alcohol was 0.62 [sic] or whatever, so that’s why I knew she was only a little bit over the limit” (T177).
(My emphasis.)

(In the Accident Report (Bodily Injury Only) (exhibit D1), which SGIC received on 6 December 1994 bearing the undated signature of the plaintiff, in handwriting which the plaintiff here thought to be that of the defendant (T201), there appeared the defendant’s breathalyzer/blood test result of 0.062.) (To Mr. Larcombe, she had also said (in answer to question 293) that, “She [the defendant] had been drinking - we all had - and she was travelling too fast.”)

In cross-examination, the plaintiff denied that the defendant had previously told her that she (the defendant) had only a learner’s permit, here saying that, “the subject never came up” (T178). She also denied that the defendant had told her that she (the defendant) did not know if her learner’s permit had expired. Had she (the plaintiff) known of such an expiry, she would not have permitted the defendant to drive her car (T212). Had the defendant held a learner’s permit, she (the plaintiff) would not have permitted her (the defendant) to drive with the plaintiff seated in the front passenger’s seat, because she (the plaintiff) would then have lost her provisional licence (T212-213). She understood that a driver with a learner’s permit should not have any alcohol in her blood and was also aware that the accompanying front seat passenger should be fully licensed (T184). (To Mr. Larcombe, she had said that she, “thought she [the defendant] [then] had her licence but I know now she didn’t have it .... I was just under the impression she had her licence, she could drive and everything” (vide the answers to questions 75 and 77 in exhibt D8).)

The plaintiff denied, in cross-examination, that, after leaving Javed’s, she and Miss Case had told the defendant to ‘lose’, ‘get rid of’ or ‘shake off’ the vehicle which she observed to be following them (T188, 189). She explained that their “best friend” had then recently been drunk, had driven a motor vehicle and been involved in an accident, “so I know that you just don’t - you don’t drive fast, you don’t risk anything, even when you’re sober” (T189). She denied having encouraged the defendant to speed in Boandik Terrace (T204).

The plaintiff also explained that she did not ask the defendant to slow down on what she regarded as “just a bit of a tricky corner” (T190),

“Because we didn’t start speeding up until we started approaching, and by the time we got to the corner it was too late for anyone to do anything” (T189-190).
(My emphasis.)

The ‘speeding up’ occurred probably about 500 metres before the bend (T190). She denied that, after leaving Javed’s, the defendant had driven at speeds between about 10, 15 or 20 k.p.h. in excess of the speed limit (T192). She also denied having had her feet up on the dashboard before turning into Boandik Terrace (T192-193). (In her interview with Mr. Larcombe, she had said that the defendant was, “driving too fast” (answer 274), “Probably about, I don’t know a hundred [kph]” (answer 152) and that she didn’t know (“I can’t remember”) whether she had given the defendant any instructions in relation to that speed (answer 278).)

The plaintiff accepted that, in an unsigned and undated statement (exhibit D3) which she made to the police when in hospital after the accident, she had “probably” said, “We would have got to about 100 kilometres per hour before I saw the approach of a right bend” (T193-195). The difference between that speed and her estimate (in evidence) of “probably not quite 80” (T105), she explained as having resulted from a misunderstanding between what somebody had told her (about 100 k.p.h.) and her own estimate of their speed (probably not quite 80 k.p.h.) (T195-197). (In the Accident Report (Bodily Injury Only) (exhibit D1) which was signed by the plaintiff, in handwriting which the plaintiff here identified as being that of the defendant (T201), the speed of the vehicle (both before and when the collision occurred) is stated as “about 100 km/h”.) She also accepted that, when she had spoken with Mr. Larcombe in February 1995, she still thought that, at the time of impact, their speed was 100 k.p.h. (T202), here saying, “Yes, other people had said, even Sioux had said we were going that fast” (T202-203).

The plaintiff “vaguely” remembered having told the police in her unsigned and undated statement (exhibit D3) that her seat belt was ‘on’ and her feet were resting on the dashboard (T204). She here explained that, by ‘resting’ she meant that she had put them there in anticipation of, or bracing herself for, impact (T204, 205). She also repeated her earlier evidence (at T104) that her knees were pressed into the dashboard (T208-209). (In her statement (exhibit D3) to the police, she is recorded as having said (with my emphasis), “I don’t remember saying anything to Sioux because by the time I realised she wasn’t slowing down, it was too late. I held tight to the grab bar above my door and covered my face. I had my seatbelt on and my feet were resting on the dashboard.”)

Miss Case, who was then also 17 years old and sharing the flat with the plaintiff, went to Carpenter Rocks on the Thursday. When the accident occurred that night, she was sitting on the back seat of the car. She had known the defendant for ‘about a year or two’, when the defendant, her daughter and boyfriend came to live in the flat a few weeks before the accident. Although she had never previously seen the defendant driving a motor vehicle (T220-221), she thought that the defendant had a driver’s licence, because she (the defendant) had offered to drive the plaintiff’s car, she knew how to drive and she was older than Miss Case (T218). Miss Case could not recall who had driven the plaintiff’s car on the Carpenter Rocks outing. She recalled that she and the plaintiff were then drinking alcohol, but could not recall having seen the defendant drinking on that outing (T219). (In cross-examination, it was not put to her that Michael Whitehead had driven the car during the Carpenter Rocks outing, as the defendant subsequently deposed.)

In Miss Case’s evidence, before the three girls went for a drive from the flat that night,

“we were out the front and we were all just about to get into the car when Sioux said that she was going to drive and I was in no capable state, even though I had a licence, so I’d climbed in the back and we drove off. We drove to Javed’s. .... I think I asked her if she was alright to drive. .... she said yes. .... She looked fine to me” (T221-222).
(My emphasis.)

She thought that the defendant might have had “maybe one or two Jim Beams” that day or night; she could not be sure (T222). Had she thought that the defendant was in any way affected by alcohol, then she would not have driven with her (T222). In her (present) belief, the defendant then looked, ‘pretty much well sober’ (T279). At that time, she (Miss Case) had held her provisional driver’s licence for about six months and, in her words, was “pretty pickled” with alcohol (T222-223). She did not think that the defendant had previously driven her car.

In Miss Case’s recollection, the defendant drove to Javed’s ‘quite safely’, “like a normal person would drive if you had a licence - knew exactly what she was doing” (T224). She (Miss Case) did not go into Javed’s and could not recall there having spoken to anybody, “but I know that we did” (T224). She then resumed her seat in the back of the car behind the plaintiff (T223, 224). In her evidence,
“We got back into the car and drove off and then the next thing I recall is we were being followed by a car and Sioux was trying to lose it and we started driving really recklessly near Crouch Street and Boandik Terrace. .... Sioux started to accelerate really fast. I don’t know how fast she was going because I wasn’t looking at the speedo. I had my eyes closed, I was really scared. We were coming up towards the bend and she wasn’t turning the wheel fast enough or something because the kerb was coming really close and then we hit the kerb and I just put my hands up on the ceiling and closed my eyes and the next minute we were flipping” (T225).
(My emphasis.)

(In cross-examination, she said that, while she was only guessing, she now thought that their speed before the accident was “around 100” (T271).) She remembered having said something about them going too fast and that they should slow down, but whether that was said to herself or ‘out loud’ she did not know.

Miss Case denied having encouraged the defendant to speed in Boandik Terrace and denied having heard the plaintiff give the defendant any such encouragement (T225-226; 297). She did not know whether “P” plates were displayed on the car that night (T226). Soon after the accident, when the plaintiff was still trapped in the car with her right leg protruding through the broken front window and her left leg through the front passenger’s window, the defendant left the scene and returned to the flat.
In cross-examination, it was put to Miss Case that, when she got into the plaintiff’s car with the defendant that night, she knew that the defendant had only a learner’s permit; that proposition she denied, saying,
“No. .... I’m positive about that, I’m sure. I thought she had a full licence” (T233).
(My emphasis.)

She could not recall having been interviewed by Mr. Larcombe on 2 March 1995. In question 292, she had been asked,

“Do you know whether Hill was the holder of a current South Australian Driving Licence?”,

to which question she had replied,

“I thought she had her “L’s” but then she told me she didn’t, she lost it a few days before” (T236).
(My emphasis.)

That response, she here said, “must be true then, if that’s what I said” (T236). She did not know whether she had discussed that response with the plaintiff (T237). (There was no clarification as to which point of time, in that response, the “then” related.)

Miss Case remembered that, before the accident, the plaintiff’s feet were up on the dashboard (T280), “just sitting on the top” (T282). She did not know for how long they were there, saying, “When we were on Boandik Terrace, that’s what I remember” (T281). To her, that position appeared to have been adopted for comfort and not because of the impending impact (T282). However, in re-examination she remembered there being a luggage rack under the dashboard and said,

“I think she might have had her feet on the luggage compartment underneath the dash - it’s possible. I can’t be sure of what I’ve seen now. I forgot all about that being there. .... there was a luggage rack there and it was possible she could have had her feet on that and not on the dash itself..... When we were on Boandik Terrace .... her legs were raised on Boandik Terrace” (T295).
(My emphasis.)

When she observed the plaintiff’s legs in that position, the car was going “really fast” and she was becoming “really scared” (T296). She agreed that the plaintiff might then have been taking steps to protect herself, as she (Miss Case) was doing (T296).

In those extracts (exhibit D5) of her interview with Mr. Larcombe (to the tender of which counsel agreed as being the evidence of Mr. Larcombe, had he been called), Miss Case had said (with my emphasis):

-.. that “Everyone was drinking and we thought she [the defendant] was the soberest out of the lot of us” (answer 66);

-.. that when they realised that the defendant’s boyfriend was not following them, the defendant “tried to lose him anyway .... then we turned on Boandik Terrace and she was going pretty fast” (answer 77), “Probably about a hundred .... Because it felt faster than 60 .... She didn’t slow down to go around the corner” (answers 99, 100 and 106);

-.. that at the flat she had only seen the defendant drink two cans of Roulettes (vodka and raspberry) and she thought the defendant looked “pretty much well sober” when they left the flat to go to Javed’s (answer 194);

-.. that the plaintiff “had her feet up on the dashboard when the accident happened and that’s why her feet went everywhere” (answer 279); and

-.. that she thought the defendant had her “L’s”, “but then she told me she didn’t, she lost it a few days before” (answer 292).

Miss Haebich was also then 17 years old and knew both the plaintiff and the defendant. She was at the flat from early in the Thursday evening. She said that both the plaintiff and Miss Case were drinking. The plaintiff was grossly affected. She was not sure about Miss Case (T314-315). She did not see the defendant drinking, at all, that night (T308); she could have been, but Miss Haebich did not notice (T315). The defendant asked her if she would look after her baby for a little while; she did so. The defendant told her about the accident upon returning to the flat more than an hour later, when she appeared very agitated and flustered (T310), but “had her head together” (T316). As far as Miss Haebich could tell, the defendant did not appear to be affected, at all, by alcohol (T310).
Miss Haebich had previously seen the defendant driving Michael Heritage’s car, about two or three times, always with him in the vehicle and, most recently, a few weeks before the accident (T310-311). She did not observe any permit plates there displayed (T310). She believed that the defendant was a fully licensed driver because,
“if you see someone driving with a baby in the car and no plates, you instantly assume that they have a licence” (T311).

(She was first asked, about six months ago, to recall whether there were permit plates displayed on the vehicle.) She does not drive and had consumed only one or two drinks that night.

Mr. Matthew Pettingill and Mr. Jason Dunn were travelling in the vehicle which had followed that being driven by the defendant from Javed’s that night. Mr. Pettingill (the driver) thought that, in Boandik Terrace, the Datsun was travelling too fast for the bend (T244). He saw that car roll over. He and Mr. Dunn assisted the defendant and Miss Case from the car, the plaintiff remaining trapped inside. The defendant told Mr. Pettingill that she needed to go home and tell her boyfriend what had happened. He drove her to West Street, but could not see to where she there went. She seemed disorientated (T258).
Mr. Pettingill could not recall the speed of his vehicle in Boandik Terrace. He thought that the Datsun was travelling about the same speed, which might have exceeded the speed limit. For the purpose of negotiating the bend about 40 k.p.h., he braked (T246, 248). The Datsun did not appear to slow down (T248). In speaking with the defendant, he did not think that she had been drinking (T250). He had not been drinking. He could not remember seeing any “P” or “L” plates displayed on the Datsun, but conceded that there could have been (T250), as there were displayed on his vehicle. The ambulance and police had been called before he drove the defendant from the accident scene. The defendant had supplied an item of her clothing with which to cover the plaintiff.
Mr. Pettingill could not recall having told the police in his undated and unsigned statement (exhibit D4) (which Mr. Birchall required Mr. Eriksen to tender) that the fastest speed at which he would have travelled, when behind the Datsun, would have been about 80 to 90 k.p.h. He accepted that, if said, that would be accurate (T254), but not on approach to the corner (T255). He agreed that the Datsun was travelling ‘between 55 to 70 kph’, as recorded in that statement (T254-255); that speed, he said, was on the Datsun’s approach to the corner (T255), when that vehicle was “closer to 100 metres” ahead of him than the 150 to 200 metres which he had previously said (T259). He did not agree that the Datsun was travelling closer to 100 kph when trying to negotiate the corner (T258). In his evidence, “I think if it was going that speed it would have been down the [sink] hole without a doubt” (T258). (Adjacent to the bend was a sink hole (see photograph 7 in exhibit P3).)
Mr. Dunn (the passenger of Mr. Pettingill) acknowledged that he “apparently” spoke to Miss Case outside Javed’s that night, but had no recollection of having done so (T298). In his evidence, although he had been drinking and could not say how fast the Datsun was travelling, it was “definitely just too fast for that corner” (T298). He did not consider that Mr. Pettingill was “chasing” the Datsun, in the sense of exceeding the speed limit, rather they were “just driving” (T301) and might have been following that vehicle (T305). He recalled that the Datsun,
“must have been doing 60 odd or something down Boandik Terrace or whatever, and it just looked like it started accelerating towards that bend” (T303).
(My emphasis.)

At the time of the accident, the defendant was 18 years and eight months old. Her daughter was then eight months old. About May 1994, when her daughter was three months old, she obtained a learner’s permit to drive a motor vehicle (T324). “Only on two or three occasions” thereafter, she had driven the car of her then boyfriend, Michael Heritage (T326). She was uncertain whether, on those occasions, Heritage had displayed “L” plates on the car; she had not displayed them (T327). Twice she had driven with him and once on her own (T364). “Probably a week or two” before the accident, she separated from Heritage and, together with her daughter and Michael Whitehead, went to live with the plaintiff and Miss Case in the flat at West Street (T328).
On the outing to Carpenter Rocks, the defendant thought that Whitehead had driven the plaintiff’s car (T330). She (the defendant) had drunk, “A couple of beers and probably a Roulette” (a can of vodka and raspberry) (T330). During that outing, she thought (at first) that she might have driven the car (T330-331). Later, however, she recalled that she must have driven it (T336), without “L” plates being displayed, she thought (T337), because she did not think that there were any “L” plates in the plaintiff’s car. Apart from that outing (and when the accident occurred), she might previously have driven the plaintiff’s car, but could not remember (T336).
After returning from Carpenter Rocks, the defendant said that she drank, “probably three roulettes, three beers, somewhere around about that” (T332). When they went to Javed’s (because they were “bored”), she described both the plaintiff and Miss Case as being between “moderately and grossly” affected by alcohol, with herself being affected “Slightly to moderate” (T333, 335). In her evidence (T335),

“it was a mutual decision, I was the soberest, that I would be the one who drove.”
(My emphasis.)

According to the defendant (T336),

“At some stage during the day I had mentioned to Kelly and Olivia that my Ls may have run out and I wasn’t sure because I didn’t have the licence with me.”
(My emphasis.)

(The plaintiff here denied that the defendant had told her that she had only a learner’s permit. To the investigator, Miss Case had said that she thought the defendant had her L’s, “but then she told me she didn’t, she lost it a few days before” (my emphasis).) In evidence, the defendant said that she did not think she had told Miss Case that night that she did not have a learner’s permit and had lost it a few days before (T350). Only when she was later at the police station did she learn that her learner’s permit had expired (T350).

When the defendant drove the plaintiff’s car that night, she knew that the plaintiff held only a provisional driver’s licence and should not have been sitting alongside her if she (the defendant) had only a learner’s permit (T337-338). In those circumstances, she described as “Stupidity” her decision then to drive the car (T338). (In view of her consumption of alcohol, had she then held a learner’s permit, her driving would also have been unlawful. In fact, her learner’s permit had recently expired (T382) and, for that reason, also, her driving was unlawful.) That night the defendant believed that it was unlawful for her to drive, because she had been drinking and the plaintiff was not licensed to sit alongside her (T385). Of her belief in that regard, she did not think that she had told either the plaintiff or Miss Case (T385-387).
After leaving Javed’s, the defendant said that upon reaching the end of Sturt Street (at the junction with Pick Avenue),
“we noticed the car behind us .... we thought it was my ex-boyfriend’s to start with .... “I’m pretty sure it [our speed] was over the speed limit .... We were trying to lose the car behind us .... We followed that road [along the railway line] until we got to Crouch Street .... and then turned on to Boandik Terrace .... until we had the accident” (T340).
(My emphasis.)

In her evidence (T341-342),

“I think I was doing the speed limit on Crouch Street but when we turned on to Boandik Terrace, would have been over the speed limit then, sped up. .... Still trying to get away from the car that was behind us. .... Everyone just kept saying ‘Lose it - lose the car behind us’. .... Just seemed like fun at the time.”
(My emphasis.)

She said that she would not have exceeded the speed limit in Boandik Terrace, had she not been told by her passengers to speed up (T342-343). (Both the plaintiff and Miss Case denied having encouraged the defendant to drive at an excessive speed.) When they were near the railway line and immediately before the accident, the plaintiff’s feet were positioned, she said, “On the top of the dash” (T341; 390-391).

In the defendant’s estimation, when the car entered the bend, her speed was, “70 to 80 [k.p.h.], I don’t think I got up above that” (T350; 343). She tried to slow down by using the manual gears, but panicked and did not do so:
“As we were coming around the corner I realised I was going too fast and I went to go down through the gears and I put my foot on the clutch and I just panicked and took all my feet off the pedals and just tried to turn the car around because it went up on the gutter. I tried to pull it back on. As it came off it must have dug in and flipped over” (T344-345).
(My emphasis.)

After being helped out through a car window and having given the plaintiff something with which to be covered, she returned to the flat because,

“I knew I was going to be spending a lot of time in the police station, so I ended up getting a lift back to the flat and making sure they would watch my daughter long enough until I got back .... and the police picked me up from there” (T345).

Breath analysis of the defendant, at 2.07 a.m., revealed the (admitted) concentration of 0.062 gram of alcohol per 100 millilitres of blood (exhibit D10). (Upon the plaintiff being admitted to hospital, there was present in her blood the (admitted) concentration of 0.100 gram of alcohol (exhibit D10).) The defendant accepted that, in the Accident Report (exhibit D1), in handwriting, which “looks like mine” was written the speed of “about 100 km/h” for both before and when the accident occurred (T354).

When she drove that night, the defendant felt affected, “Slightly, as in feeling happy” (T350) by the alcohol that she had consumed. She felt able properly to drive the car and believed that she was doing so, until she sped up in Boandik Terrace (T351). In her evidence (T351),

“I’m pretty sure I was on the speed limit most of the time except for that street along the railway and Boandik, of course.”

Asked (T351-352),

“Up until you speeded up in Boandik Terrace, in the way you’ve described, was there anything about your driving that night which, in your evidence, or from which in your evidence, either the plaintiff or Miss Case could have been or should have been concerned about the way in which you were driving”,
(My emphasis.)

she replied (T352),

“Probably just the speeding along the railway, apart from that I was driving pretty normally.”
(My emphasis.)

In cross-examination, the defendant agreed that she would not have driven that night, had she thought that she was affected by alcohol (T356). To her, the accident was caused, “Pretty much [by] my inexperience, I would say, and the speed I was going” (T359). Alcohol might have played a very small part in the accident, she said, but she had no reason to think that she was in any way affected by alcohol (T365). Apart from speeding (“Probably 70 to 80”) along [Harrold Street] near the railway line, in her evidence there was nothing ‘out of the ordinary’ in her manner of driving until, speeding in Boandik Terrace, she ‘unexpectedly’ came to the bend (T360-361). She “knew there was a corner” but, “I didn’t realise how sharp it was until I was right on it” (T374). She agreed that the accident resulted from her having misjudged ‘the nature of the corner’ (T374).
Senior Constable Brown attended at the accident scene about 1.13 a.m. The plaintiff was still trapped in the car. Her right leg was protruding through the broken windscreen and her left leg through the broken near-side front window (T416-417). He spoke with the defendant at the West Street flat about 1.30 a.m. Of her appearance, the only observation that he made was, “she had a slight smell of liquor about her” (T416). When he asked how the accident had occurred, she replied,

“They were egging me on. I was just going faster and faster and rolled over” (T419).
(My emphasis.)
About 11.30 a.m. that morning, the defendant spoke with constable Carroll at the Mount Gambier Police Station. In that conversation (exhibit P7), she said:

-.. that she had been driving the car, because the plaintiff was drunk;

-.. that between midday and just before the accident, she had drunk, “A stubbie of beer, two handles of carlton, 4 to 6 vodka and raspberries”;

-.. that “About twice” she had previously driven the plaintiff’s car;

-.. that when the accident occurred,

“I was doing about 100KPH and I had the corner coming up but [Case] and [the plaintiff] were screaming and being idiots. Instead of putting my foot on the brake I hit the accelerator” (my emphasis);

-.. that she was doing 100 k.p.h. (“I looked at the speedo once”), “Because I was just being plain stupid”;

-.. that she had, “freaked out so I put my foot on the brake but it went on the accelerator”;

-.. that she had not applied the brakes, “Because I was scared and confused and didn’t know what to do at the time”;

-.. that observing the approach of the kerb, “I tried to swerve out of the way but I wasn’t quick enough”;

-.. that she had not driven at an excessive speed upon leaving the flat, rather she had driven at 100 k.p.h. on that section of the road because,

“I was being stupid, trying to get away from the car that was chasing us .... It kept up with us from the nightclub so I presumed it was chasing us”;

-.. that in the previous month she had twice travelled on Boandik Terrace; and

-.. that for four days her learner’s permit had been expired.

In evidence (which I accept), she said that she was very confused at the time of that conversation and did not place her foot on the accelerator, although she might have said that she did (T380).

Senior Sergeant Mitton of the Accident Investigation Section of the South Australian Police Department attended at the accident scene about 10.40 a.m. on 11 November 1994. Upon his observations, calculations and uncontested expert opinion, the accident occurred because the car was travelling too fast to negotiate “the sharpness of the bend” (T425). Throughout the bend, the roadway turned 41 degrees. From the direction in which the car was travelling, the road ascended a slight slope of one degree (the crest being near the commencement of the bend) and then descended while curving to the right (as depicted in photographs 4 and 5 of exhibit P3).
Sergeant Mitton calculated the “critical curve speed” of the bend (“the theoretical maximum speed at which the bend can safely be negotiated without the vehicle sliding off the ‘outside’ of the bend”) to be about 68 k.p.h. The speed limit was 60 k.p.h. Upon that calculation, he inferred that it was likely that the speed of the car, when rounding the bend, exceeded the critical curve speed (see exhibit P6).
The plaintiff was surgically treated by Mr. McCusker, an orthopaedic surgeon. She was also medically examined and reported upon by another two orthopaedic surgeons, Mr. Girgis and Mr. Fry. Both of those specialists gave evidence and were questioned about the likely position of the plaintiff’s legs when the accident occurred.
Mr. Girgis (who was called for the plaintiff) agreed, in cross-examination, that it was ‘more likely’ that the (right) ankle injuries were sustained with the ankle protruding from the side of the car during the roll-over, although such injuries could also be sustained with the ankle inside the car (T407). Because there had been a fracture dislocation of the ankle, he considered that significant forces were involved (T407). He also agreed that the plaintiff’s (left) knee injury indicated that the knee had been subjected to significant forces, consistent both with the knee having gone through the windscreen and having struck the dashboard, unless prevented by the seat belt (T407-408). (In some questions, there was confusion about which ankle and knee had been injured.)
Mr. Fry (who was called for the defendant) considered ‘very probable’ that the plaintiff’s ankle and knee injuries were ‘caused or contributed to’ by her feet being on the dashboard before the accident occurred, rather than on the floor of the car (T470). In his opinion (T471):
“[T]he type of injuries that she got .... to the left knee, is a twisting rotating thing. That leg being flung about could easily do that sort of injury. As to the ankle on the right side, that is more a sideways force. If it was up against the windscreen, and there was a sudden impact against the windscreen with the foot, that could have twisted and caused the injury that we talk of. That would be much less likely, although possible, in the foot well.”

(My emphasis.)

He also said (T487-488),

“Those types of injuries tend to suggest that .... with the legs being up high in the first place, was correct, rather than the reverse, that they were down low. .... but obviously the higher up the feet are raised the more possibility of them going out.”

Findings

In assessment of the civilian witnesses, I agree with Mr. Eriksen that, in many respects, they did their best truthfully to answer questions about traumatic events which occurred more than five years ago. Clearly, however, there are matters of conflict and credibility which must here be resolved. That resolution is assisted, to my mind, by statements which those witnesses made much closer to the occurrence of the accident. In certain respects, I found the plaintiff to be more direct and reliable than the defendant.
Having considered all of the evidence, together with the submissions of counsel, on the balance of probabilities I am satisfied that, when this accident occurred, the following position has here been established:

The plaintiff and Miss Case each held a provisional driver’s licence. The defendant was not then the holder of any permit or licence authorising her to drive a motor vehicle. She had held a learner’s permit but, a few days previously, that permit had expired.
The plaintiff believed that the defendant was then fully licensed to drive a motor vehicle, based upon her observation and recollection of the defendant having (admittedly) driven both her car and that of Michael Heritage without learner plates being displayed, including the defendant (admittedly) having driven the plaintiff’s car during the outing to Carpenter Rocks.
Although Miss Case was of the belief, based upon what she had told Mr. Larcombe (contrary to her evidence), that the defendant then held a learner’s permit, such a belief was not held by the plaintiff.
The plaintiff, Miss Case and the defendant had recently been drinking alcohol, to the knowledge of each other. Both the plaintiff and Miss Case were very intoxicated. The defendant was (admittedly) slightly affected by alcohol, as indicated by the subsequent breath analysis reading of 0.062.
When the plaintiff permitted the defendant to drive her car that night, neither the plaintiff nor Miss Case was aware of the defendant being adversely affected by the alcohol that she had consumed. In driving the car, the defendant did not display any observable signs of intoxication.
Apart from having exceeded the speed limit in Harrold Street, until turning into Boandik Terrace the defendant had driven the plaintiff’s car properly and had not given any cause for either of her passengers to be concerned about their safety. Unlike her passengers (who were both wearing seat belts), the defendant did not consume any alcohol in the car.
After turning into Boandik Terrace and approaching the right-hand bend in the road, without any warning to or encouragement of either passenger, the defendant quickly accelerated the car to between 70 and 80 k.p.h. Because of her inadequate lookout, her inexperience as a driver, her excessive speed for the angle and slope of the bend and the possible effects upon her of the alcohol that she had consumed, the defendant was unable to negotiate the bend. The car collided with the left-hand kerb, swung back towards the centre of the road and rolled over, resulting in injuries to the plaintiff’s right ankle and left knee.
Before the car turned into Boandik Terrace, the plaintiff was sitting in the front passenger’s seat, with her feet positioned on the magazine rack underneath the dashboard. When the car sped up in Boandik Terrace and the plaintiff became concerned for her safety, she placed her feet on the dashboard and braced herself before the accident occurred. With the fracture of glass as the car rolled over, both of her legs ended up protruding from the car, her left leg through the front passenger’s window and her right leg through the windscreen.

Legal considerations

Upon those findings, the legal contentions advanced for the defendant shall be considered.
Primarily the defendant contended that, at the time of the accident, the parties were not in a relationship of proximity to each other such that, as driver of the car, the defendant had a relevant duty of care to the plaintiff, as a passenger in the car (Gala v Preston (1991) 172 CLR 243). In this contention, the plaintiff was then complicit with the defendant in that she aided, abetted and encouraged the defendant in unlawfully driving the car in a manner dangerous to the public by attempting to negotiate the bend at an excessive speed.
“[A] relevant duty of care will arise under the common law of negligence only in a case where the requirement of a relationship of proximity between the plaintiff and the defendant is satisfied” (Cook v Cook (1986) 162 CLR 376, at 381, per Mason, Wilson, Deane and Dawson JJ.). “[T]he onus lies on the party who asserts that, by reason of special and exceptional facts, the ordinary relationship of a driver towards a passenger is transformed into one which lacks the requisite relationship of proximity to give rise to a relevant duty of care” (Gala, supra, at 254, per Mason C.J., Deane, Gaudron and McHugh JJ.; my emphasis). Upon the findings which have been made, particularly that, “approaching the right-hand bend in the road, without any warning to or encouragement of either passenger, the defendant quickly accelerated the car to between 70 and 80 k.p.h.” (the 6th finding), I am not satisfied that the ordinary relationship of a driver towards a passenger was here transformed into one between the parties which lacked the requisite relationship of proximity to give rise to a relevant duty of care. (Compare, also, George v Dowling [1992] 59 SASR 291, at 295-296, 298.)
Secondly the defendant contended that (independently of the primary contention) special and exceptional circumstances here existed which transformed the ‘ordinary relationship’ between the defendant and the plaintiff into a special category of relationship (Gala, supra). Those special and exceptional circumstances included that, to the knowledge of the plaintiff, the defendant was an inexperienced and unlicensed driver who was slightly affected by alcohol and the plaintiff voluntarily accepted the risks associated with being driven by such a person (volenti non fit injuria).
“[W]here there is ordinarily a relationship of proximity between driver and passenger, the standard of care is that reasonably to be expected of an experienced, competent driver. Then the standard is objective and is not modified or extended by the driving history or ability of the particular driver” (Gala, at 253; my emphasis). Special and exceptional circumstances, “may transform the relationship between a driver and a particular passenger into a special or different class or category of relationship” (Gala, at 253). “[T]he onus of establishing the existence of facts giving rise to a relationship of such a special or different category under which it would be unreasonable to fix the duty of care owed by a driver by reference to the ordinary standard of care lies on the party who asserts it” (Gala, at 253-254; my emphasis). Upon the findings which have been made, particularly that, “the plaintiff believed that the defendant was then fully licensed to drive a motor vehicle” (the 2nd finding) and that she was not then aware of the defendant being adversely affected by alcohol (the 4th finding)), I am not satisfied that the existence of facts giving rise to a special relationship different from that which ordinarily exists between a driver and passenger has here been established (cf. Cook, supra).
Specifically addressing the defence of volenti non fit injuria, “In order to establish the defence, the plaintiff must be shown not only to have perceived the existence of danger .... but also that he fully appreciated it and voluntarily accepted the risk” (Roggenkamp v Bennett (1950) 80 CLR 292, at 300, per McTiernan and Williams JJ.). As King C.J. said in Banovic v Perkovic [1982] 30 SASR 34, at 36 (and Matheson J. cited in George v Dowling, supra, at 297):
“In a drink driving case this entails, as it seems to me, that the plaintiff perceived that the driver was or could well be intoxicated to such a degree as to render him an unsafe driver, that he appreciated fully that it was dangerous to travel in the vehicle as a passenger, and that he nevertheless decided, voluntarily, i.e. without compulsion or necessity, to take the risk involved in travelling as a passenger.”
(My emphasis.)

Again, upon the finding that the plaintiff was not then aware of the defendant being adversely affected by alcohol (the 4th finding), I am not satisfied that this defence has been established.

Thirdly the defendant referred to clause 3 of the statutory Policy of Insurance contained in Schedule 4 of the Motor Vehicles Act, 1959, by which, as owner of the car, the plaintiff warranted that,
“no other person will, with his or her knowledge or consent (which will be presumed in any proceedings in the absence of proof to the contrary), drive or use the vehicle, or do or omit to do anything in relation to the vehicle, contrary to any of the paragraphs of clause 2.”
(My emphasis.)

In the defendant’s contention, the plaintiff breached that warranty because, with her knowledge or consent, the defendant had driven the car, at the time of the accident, “with reckless indifference as to whether .... death, bodily injury or damage results” (clause 2 (a)), “while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle (clause 2 (b)) and “while not duly licensed or otherwise permitted by law to drive the motor vehicle” (clause 2 (d)) and, therefore, the plaintiff was not entitled to recover damages.

With the observation that such a warranty is statutorily given to the insurer not the defendant, upon the findings which have been made (and subsequently referred to) I am satisfied that it was neither with the plaintiff’s knowledge nor consent that the defendant drove the car in breach of those sub-clauses of clause 2 of the statutory Policy of Insurance contained in Schedule 4 of the Motor Vehicles Act.
Finally the defendant contended that, if she were negligent in her driving of the car when the accident occurred, as a passenger in the car the plaintiff was contributorily negligent in that:

-.. she knew or ought to have known that the defendant was so much under the influence of alcohol that her ability to drive the car was adversely affected;

-.. she knew or ought to have known that the defendant did not hold a driver’s licence and was inexperienced as a driver;

-.. believing that the defendant held a learner’s permit, the plaintiff should not have driven with her when she knew that the defendant had been drinking and, as the holder of a provisional driver’s licence, she should not have been sitting in the front passenger’s seat;

-.. she was aware of, consented to, aided, abetted and encouraged the defendant driving at an excessive speed and in a manner dangerous to the public;

-.. she did not advise, caution or direct the defendant to stop driving, reduce speed or exercise proper control over the vehicle;

-.. she had consumed such an amount of intoxicating liquor as to have diminished her capacity to appreciate the risks of being driven by the defendant; and

-.. she failed to take any or sufficient care for her own safety, particularly by placing her feet on the dashboard of the car in the vicinity of the windscreen and near-side front passenger’s window as the vehicle was being driven at an excessive speed and entering the bend, when she should have known that an accident would probably occur and she would sustain injuries to her legs in that position.

Concerning contributory negligence, in Banovic v Perkovic (supra, at 36) King C.J. said (as cited by Matheson J. in George v Dowling, supra, at 298-299):
“Contributory negligence exists where a plaintiff has failed to exercise the care for his own safety which a reasonable person would have exercised in the circumstances. In a drink driving case a number of ways in which this may occur suggest themselves. A plaintiff who perceives the intoxication of the driver may, although he does not appreciate the danger and voluntarily accept it, be guilty of a failure to take reasonable care for his own safety by travelling as a passenger: Sloan v Kirby and Redman [1979] 20 SASR 263; Owens v Brimmell 1977] 1 QB 859. A plaintiff, although not voluntarily accepting the risk of travelling with a driver whom he knows to be intoxicated, may travel as a passenger because of an unreasonable view that he is compelled by necessity to do so. A plaintiff who perceives the driver’s intoxication may be lacking in reasonable care for his own safety in failing to appreciate the danger. There is also the case of the plaintiff who, knowing that the driver is likely to be intoxicated, fails to take reasonable steps to assess his condition before embarking upon the journey. Finally a plaintiff, knowing that the driver is likely to become intoxicated, may, by his own drinking, deprive himself of the capacity to assess the driver adequately.”
(My emphasis.)

In further considering the last postulated situation, King C.J. then discussed where the driver is engaged on “a drinking spree” or “a joint drinking bout” in company with, or to the knowledge of, the plaintiff who by drinking deprives himself of his capacity to assess the sobriety of the driver. His Honour continued (at 37):

“I do not think, however, that, in the absence of such circumstances, a passenger is required to refrain from drinking in order to be able to detect signs of intoxication in his driver. The safety of the vehicle and its occupants is the responsibility of the driver. It is his obligation to remain sober so that he can discharge that responsibility. The passenger has no such responsibility. In the absence of some clear indication that the driver will fail to discharge his obligation, the passenger can hardly be expected to take precautions against such failure. Having no responsibility for the driving, the passenger is free to drink as much or as little as he pleases. In a common social situation, one indeed which is commonly recommended in road safety publicity, one person assumes responsibility for driving leaving the others to drink as they see fit. It would be quite wrong, in my view, to attribute contributory negligence to those others because their drinking deprives them of the capacity to notice that the driver has failed in his obligations. .... Even if the evidence established, which I think it does not, that the [driver] was showing outward signs of his intoxication before the journey commenced and that the [passenger] failed to notice them because of his own drinking, that failure would not amount to contributory negligence.”
(My emphasis.)

Liability

Upon the findings which have been made, I am satisfied that, in her driving of the car when the accident occurred, the defendant was clearly negligent, particularly in respect of her lookout, the excessive speed at which, with her inexperience, she approached the bend and collided with the left-hand kerb and the car rolled over, the possibly adverse effects upon her of the alcohol she had consumed and her failure to apply the brakes.
In relation to most of the reasons for which the defendant contended that the plaintiff was contributorily negligent, findings have here been made favourably to the plaintiff and adversely to the defendant. Specifically I am satisfied:

-.. that the plaintiff did not know and ought not to have known that the defendant was so much under the influence of alcohol that her ability to drive the car was adversely affected or that the defendant did not hold a driver’s licence and was inexperienced as a driver;

-.. that the plaintiff did not believe that the defendant held a learner’s permit and, therefore, as a front seat passenger with a provisional driver’s licence, the plaintiff could be driven by the defendant whom she knew had been drinking alcohol; and

-.. that although the plaintiff became aware, as the defendant quickly accelerated the car on approaching the bend, that the defendant was driving at an excessive speed and in a manner dangerous to the public, the plaintiff did not consent to, aid, abet or encourage the defendant in that driving.

Of the remaining reasons for which the defendant contended that the plaintiff was contributorily negligent, while the plaintiff did not ‘advise, caution or direct’ the defendant to stop driving, reduce speed or exercise proper control over the vehicle and the plaintiff had consumed such an amount of intoxicating liquor as to have diminished her capacity to appreciate the risks of being driven by the defendant, those risks did not become apparent until the defendant quickly accelerated on approaching the bend. In those circumstances, for the plaintiff previously to have consumed so much alcohol that she failed to alert the defendant of her speed and manner of driving should not be regarded, in my view, as “contributory negligence of which the accident was a reasonable or natural consequence” (Dixon J., as he then was, in The Insurance Commissioner v Joyce (1948) 77 CLR 39, at 60; my emphasis), for the reasons which King C.J. expressed in Banovic, at 37 (supra).
Finally, in relation to the contention that the plaintiff failed to take any or sufficient care for her own safety by placing her feet on the dashboard of the car as the vehicle was being driven at an excessive speed and entering the bend, upon the (7th) finding which has been made, when the car turned into Boandik Terrace the plaintiff’s feet were positioned on the magazine rack underneath the dashboard and, “When the car sped up in Boandik Terrace and the plaintiff became concerned for her safety, she placed her feet on the dashboard and braced herself before the accident occurred”.
While one may infer, ex post facto, that particular injuries sustained in a vehicular accident were probably caused, or contributed to, by the position of the injured person at the time of the accident, situations can be envisaged in which, were it not for unusual positions having been adopted, an accident could have resulted in more serious injuries being sustained. Consider the passenger who ‘ducks’ his head under the dashboard to avoid being hit by a large object protruding from the back of a stationary vehicle in front of him. By his action, the passenger may avoid being decapitated but sustain severe head injuries under the dashboard as a consequence. Could it seriously be suggested that the passenger should have remained ‘properly’ seated and done nothing?
The factual position here established in relation to the plaintiff’s feet is not addressed in section 35A of the Wrongs Act. That section provides for the reduction of damages in certain circumstances (for example, failure to wear a seat belt; failure to wear a safety helmet, where there is a causal connection with the extent of the person’s injury; and, where the injured person is a passenger in a motor vehicle but is not ‘within the passenger compartment’ and there is a causal connection with the extent of his injuries). In the circumstances of this accident, I do not consider that the fact of the plaintiff’s feet being positioned on the dashboard, when this accident occurred, should be regarded as “contributory negligence of which the accident was a reasonable or natural consequence” (Dixon J., in Joyce’s case, supra; cited by King C.J. in Banovic, supra; my emphasis), even if that position contributed to her injuries (the proof of which I am not satisfied).
For these reasons, in my judgment, the defendant is solely responsible for the accident.

Damages

The plaintiff left school after completing year 11 and unsuccessfully studying for part of year 12 in 1994. At the time of the accident later that year, she was still looking for work in Mount Gambier. Her interest then (and now) is in caring for elderly or young persons. For eight months, she had obtained work experience in caring for the elderly.

For a few minutes, the plaintiff was rendered unconscious in the accident. When she awoke, she was trapped with her legs protruding through broken windows of the car, as previously described. She was terrified and in pain, if she tried to move. After being cut from the car, by ambulance she was taken to the Mount Gambier Hospital, where she was admitted for about 11 days and an operation was performed upon her right ankle. On crutches (for about eight months) and with her ankle in plaster, she then went to live with her parents in Carpenter Rocks where, at first, she required regular maternal assistance in tasks of a personal, hygienic and domestic nature, in attending medical and physiotherapeutic appointments and in dressing her injuries.
In hospital, when the plaintiff began to move around and put weight on her left knee, with twinges of pain the knee would “go loose and lapse” (T115). A couple of months after the accident, coming down stairs on her crutches, the knee “just gave way” and she fell down the steps (T116). In March 1996, arthroscopic surgery was performed on her left knee. With persistent collapsing of the knee, in November 1997 the knee was surgically reconstructed. For about eight months, she then had to wear a knee brace. After removal of the right ankle plaster, her ankle was very sore and stiff and physiotherapeutic treatment was required. Further surgery was then necessary to remove blood clots and glass from the inner shin of her right leg. Subsequently, the surgically inserted plate and screws were removed from her ankle. Towards the middle of 1998, she had recovered sufficiently to resume looking for work.
About October 1998, the plaintiff obtained casual part-time work as a kitchen hand in Mount Gambier until that Christmas. With bending, squatting and standing on her feet all day, both her ankle and knee ached and the knee stiffened. Nocturnally, those joints had to be elevated to ease her pain. She was unsuccessful in obtaining any further work in Mount Gambier. In November 1999, she moved to Lakes Entrance, in Victoria, and obtained employment as a sales assistant in nearby Johnsonville. Following disagreement with her employer about going to Mount Gambier, for purposes connected with this litigation, she left that employment in January 2000. She is now 22 years old and is considering attending TAFE courses to assist her in applying for work at an aged care facility.
On steps or stairs, the plaintiff’s left knee remains unsteady or unstable. In her evidence (T125),
“I just have to always be very careful, always watch where I’m stepping, because I know that my left knee hasn’t got much support in it, so every time I step down on to my left knee when I’m going down the steps, I always sort of make sure I’ve got a back-up, because sometimes it’s just given way when I’ve taken a step. .... I haven’t fallen all the way to the ground, but sometimes it sort of just jars out, pops out a little bit and I sort of just catch myself.”

Putting a lot of pressure or weight on her feet and legs is painful (T125). She does not feel able to climb a ladder. She can only kneel on her right knee. Squatting is painful. She cannot run. Walking on uneven surfaces is difficult. She cannot wear high-heeled shoes. She is able to dance, but “I know my limits” (T145). When driving, her left knee aches and stiffens, requiring that she get out, walk, stretch and “crack it sometimes” (T128). She remains fearful of having another vehicular accident. For about six months, she had difficulty in sleeping. With weather changes, the two joints become inflamed and ache.

Cosmetically, the plaintiff has suffered significant residual scarring and disfigurement. Inside her left knee, there is a misshapen area which is both flabby and firm. There is also a scar (about eight centimetres long) below the knee. Inside her right calf, there is scarring and indentation. There is also a wide scar (about 18 centimetres long) on the outside of her right leg, extending from about mid-calf to the ankle. Understandably, these disfiguring features (which are depicted in the seven photographs in exhibit P5) cause her embarrassment and have provoked comments from other persons.
In the reports of Mr. McCusker (the orthopaedic surgeon who treated the plaintiff), repair of the “fracture dislocation” of her right ankle involved reduction of the fibula and fixing with a plate and screws, which were removed about 11 months later. He also described the “complete tear” of the anterior cruciate ligament in her left knee, which he related to the accident and required arthroscopic surgery. That surgery also revealed a complex tear of her medial meniscus which required partial resection. About four months later, the plaintiff suffered a further fall and continued to experience a feeling of instability in that knee. In October 1997, he described her right ankle symptoms as being “fine and of no great disability to her.” In November 1997, he performed an anterior cruciate ligament reconstruction of the left knee, which required the supporting brace.
In his final report of 1 September 1998, Mr. McCusker referred to X-rays of the plaintiff’s right ankle as revealing,
“a congruous ankle joint but with some early signs of degeneration .... with respect to osteophyte formation on the lateral views, both posteriorly and anteriorly. .... These x-rays would suggest that she does have the possibility of having some degree of post-traumatic osteoarthritis in this right ankle as a result of this injury.”

In his estimation, there is the residual disability of 10 per cent with the left knee and 14 per cent with the right ankle.

In July 1997 (before the left knee reconstruction), Mr. Beetham (a Victorian consultant orthopaedic surgeon) examined and reported (in exhibit P4) upon the plaintiff’s, “severe injuries to both legs”. In his opinion, she would “continue to have increasing stiffness and pain in her right ankle due to increasing post-traumatic osteo-arthritis.” He recommended that she be considered for retraining in a “non-physical type occupation.”
Mr. Girgis (the orthopaedic surgeon previously referred to) examined the plaintiff in March 1999 and reported upon her in April 1999. The right ankle was then stable and did not much bother her but “sometimes cracks.” There was no swelling in the left knee, which “cracks” during movements, sometimes felt as if it may give way and ached after walking or driving for about 30 minutes. He described her “rather conspicuous” scars. In his opinion, the plaintiff has these residual disabilities:

-.. 30% permanent loss of function of the right leg below the knee, due to the ankle joint injury (taking into consideration the possibility of premature degenerative arthritic changes);

-.. 20% permanent loss of function and use of the left leg at or above the knee joint (which is not a normal joint); and

-.. 5% permanent body disfigurement because of the scars.

In evidence, Mr. Girgis said that the plaintiff’s right ankle is undergoing arthritis changes and her left knee is susceptible to premature osteo-arthritis (T397-398). He believed that, within five years, arthroscopic debridement or cleaning of the ankle joint will be necessary until, with increasing pain and degeneration, that joint will probably have to be fused or replaced in not less than ten years and about each ten years thereafter (T398-399). In relation to her knee, he prognosticated that,
“it may be 15 years before she needs a knee replacement, but before that she may need again arthroscopy to clean the joint every now and then” (T400).

The cost of arthroscopy is now between $1,000 and $3,000, with fusion or joint replacement about $10,000. Because there are two weight bearing joints affected (one in each leg), Mr. Girgis thought “definitely this will affect her physical mobility and capacity” (T402). He recommended that she should not stand on her feet for long periods and she should rest every hour or so (T402). In his view, with some restrictions she could work as a shop assistant.

Mr. Fry (the orthopaedic surgeon previously referred to) examined the plaintiff in July 1999 and reported upon her in December 1999. In his report (exhibit D9):
“She has a permanent impairment of the [right] ankle .... with a consequent possibility of post traumatic degeneration occurring. .... Overall there is an impairment of the leg and that amounts to some 20% loss of function of the leg below [the] knee.”

Concerning the left knee, he reported,

“somewhat like the ankle there has been internal mechanical damage, the possibility of earlier than normal arthritis exists due to some degree of instability and loss of much of the meniscus. .... She has an impairment of the left leg at or above knee level that amounts to some 20% loss of that region.”

In his reported opinion, “Her ability to engage in employment has not really been affected to any significant degree by the injuries that she has suffered. The only likelihood of any interference with employment is upon employment that required her to be walking a great deal each day, constantly on her feet or employment which required her to do a lot of crouching or stair climbing. She would have some minor difficulties with both of these types of activity.”

Mr. Fry said, in evidence, that with sensible self-care the plaintiff was physically able to work as an aged care assistant (T464). He referred to arthrodesis (fusion) of the ankle and joint replacements as only being ‘possibilities’ and not ‘ultimately definite’ (T465), while agreeing that there will be deterioration in the ankle (T476). He accepted as a “possibility” the opinion of Mr. Girgis that the plaintiff will need treatment for both joints in between five and 15 years, but opined that “she probably will avoid such things” (T476). He disagreed that, because of the knee injury, there was likely to be more strain on the ankle than a person would normally experience (T477). Yet, somewhat surprisingly, he agreed that, with pain in the ankle, more stress would be placed upon the knee (T479). To him, a feeling that the knee will give way is experienced because the knee can give way; “What she is feeling is the knee actually start[ing] to give way” (T479). Both injuries he described as ‘significant’ (T474, 480). Somewhat flippantly, I thought, he said,
“Aged care can be as heavy as you like; as heavy as any labouring work - well, that is what it is. Equally, depending upon what you do, it can go a lot lighter. .... if you have got dicky knees, or whatever - you are not going to go to a place that is full of geriatric dementias that need every conceivable thing done to them and have to be manhandled every moment of the day” (T483-484).
In assessment of the plaintiff’s damages, special damages, which were agreed in the amount of $8,946.76 (T509), have been paid for the defendant.
With regard to the plaintiff’s non-economic loss, it was not contended that her ability to lead a normal life was not “significantly impaired” by the injuries for a period of at least seven days (Wrongs Act, 1936, section 35A (1)(a)(i)). In application of the well-established principles referred to in Percario v Kordysz [1990] 54 SASR 259, at 260, the severity of her non-economic loss is determined as being ‘significant’, encompassing as it does the serious injuries sustained to her right ankle and left knee, the extensive treatment that she has undergone to further her recovery, the prolonged pain that she has endured, the significant discomfort which she will continue to suffer in the future with post-traumatic osteo-arthritis, the considerable limitations upon her physical activities, capabilities and enjoyment of life, the conspicuous residual cosmetic scarring and disfigurement and the significant chance (Malec v J.C. Hutton Pty. Ltd. (1990) 169 CLR 638) that she will undergo further major surgical procedures upon both her ankle and knee in the future.
Taking everything before me into account as best I am able, on a scale running from 0 to 60 (section 35A (1)(b)(i)), to the plaintiff’s “total non-economic loss” the numerical value of 25 is assigned. The “prescribed amount” referred to in section 35A (1)(b)(ii) is $1,430 (I was informed). That amount, when multiplied by the assigned number, results in award of the plaintiff’s damages for “total non-economic loss”, past and future, in the amount of $35,750. In that amount, therefore, her damages for total non-economic loss are assessed.
With regard to past economic loss, although the plaintiff had not commenced her working life at the time of the accident, she was then looking for work and, were it not for her accident injuries, would probably have found unskilled employment around Christmas 1994. For about four years, until she had recovered sufficiently from those injuries and their treatment, she was significantly deprived, by her convalescence, of the opportunity of seeking and obtaining employment as an unskilled, physically fit young woman. In respect of these past ‘lost opportunities’, she should be compensated. There have been no award figures or calculations presented, merely the fact that she earned about $10.50 (gross) per hour as a kitchen hand in October 1998. Necessarily a very broad award must here be made. Allowing for contingencies, upon this head of damages the amount of $60,000 is awarded, inclusive of interest.
With regard to future economic loss, although the plaintiff is desirous of becoming trained to care for aged persons, upon the medical evidence presented, I am persuaded that she has been deprived of the ability to engage in that occupation and a wide range of occupations which require pressure or weight being placed on her legs and feet. (In those respects, I accept the evidence of Mr. Beetham and Mr. Girgis in preference to that of Mr. Fry.) Clearly, she would be best suited to sedentary work which permitted her occasionally to move around. However, as well recognized, persons with disabilities may these days be disadvantaged in securing employment, especially those with no established employment record (cf. Wade v Allsopp (1976) 10 ALR 353, at 361, per Stephen J.; Versace v Messer (1993) 172 LSJS 409, at 413-414, per Perry J.; and Bates v Saurbery, judgment no. D3571 of Chief Judge Brebner delivered on 7 March 1997, at page 11).
Upon the medical evidence which I accept, the plaintiff’s loss of earning capacity is represented by the significant percentage permanent loss of function of her right leg below the knee (about 30%) and her left leg at or above the knee (about 20%), taking into consideration the possibility of premature degenerative arthritic changes. For this considerable loss, a substantial allowance should be made. As with past ‘lost opportunities’, this deficit also relates to the plaintiff having been deprived of the opportunity to obtain employment as a physically fit woman throughout practically the whole of her working life. The words of King C.J. in Kiivas v Clarke (1980) 90 LSJS 454, at 457 (to which Mr. Birchall referred) seem apposite:
“He is now limited to sedentary work. His lack of education precludes most sedentary jobs of a clerical nature. For future employment he must look to light manual jobs. These are much sought after and are notoriously hard to come by.”

However, the plaintiff is only 22 years old. She presented as an intelligent and alert young person. I consider it likely that, as recommended by Mr. Beetham, she will obtain training in a “non-physical type occupation”. I agree with Mr. Eriksen and Mr. Birchall that an actuarial multiplier is not here appropriate. Again, a broad axe approach must be adopted and the award should be modest.

Under this head of damages, allowance must also be made for the costs of future treatment which the plaintiff will be required to receive. Accepting (as I do) the evidence of Mr. Girgis, there is a significant chance that, in relation to both joints, arthroscopic debridement will be necessary within five years and fusion or replacement within 10 to 15 years, and (if replacement) about each subsequent 10 years, with her physical mobility being adversely affected because both legs were injured. Although the present costs of those procedures should be discounted because the plaintiff will have the use of that money in advance, the future costs will probably be greater than now. Those procedures will also require periods of convalescence, during which she will not be able to work and both physiotherapeutic and medicinal costs will be incurred.
Taking everything before me into account, allowing for contingencies (both favourable and unfavourable) and discounting 3% for the effects of inflation (Todorovic v Waller (1981) 150 CLR 402), the present value of the plaintiff’s future economic loss is assessed at $80,000.
In providing the plaintiff, during the early stages of her long convalescence, with significant gratuitous services of a much more demanding nature than normally to be expected of a family member, I consider that the amount of $2,000 should be allowed (section 35A (1)(h)).
In summary, therefore, the plaintiff’s damages are assessed as follows:

Non-economic loss $35,750.00

Past economic loss $60,000.00
(inclusive of interest)

Future economic loss  $80,000.00
         (including medical and
           other treatment)

Gratuitous services $2,000.00
__________
$177,750.00
__________

Judgment will be entered for the plaintiff against the defendant in the amount of $177,750.00. Upon the question of costs, counsel shall be heard.

[2000] SADC 53

28 April 2000