NICHOLLS-CHAPPELL v Irving - [2000] WADC 87

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: NICHOLLS-CHAPPELL -v- IRVING
[2000] WADC 87

CORAM: COMMISSIONER EATON

HEARD: 24 AND 25 NOVEMBER 1999

DELIVERED : 11 APRIL 2000

FILE NO/S: CIV 1511 of 1997

BETWEEN: CHRISTOPHER EUGENE NICHOLLS-CHAPPELL
Plaintiff
AND
RICHARD ANDREW IRVING
Defendant

Catchwords:

Torts - Negligence - Motor vehicle accident and provisional assessment of damages - Turns on own facts.

Legislation:

Motor Vehicle (Third Party Insurance) Act 1943

Result:

Plaintiff's claim dismissed. Provisional assessment of damages.

Representation:

Counsel:

Plaintiff: Mr B G Bradley
Defendant: Mr J G Staude

Solicitors:

Plaintiff: Kuscevich & Associates
Defendant: John G Staude

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

Fox v Wood (1981) 148 CLR 384
Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81-192
Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Bowen v Tutte (1990) Aust Torts Reports 81-043
Douty v Watson, unreported; DCt of WA; Library No 4679; 3 November 1995
Feher v Perrett Traders Pty Ltd (1988) 6 MVR 433
Moralee v Mosey (1990) 11 MVR 65
Nesterczuk v Mortimer (1965) 115 CLR 140
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Wheatland v Dickson (1995) 22 MVR 431

COMMISSIONER EATON: In this case the plaintiff and the defendant were driving their respective four wheel drive vehicles on the Port Hedland/Marble Bar Road on 8 August 1994. The plaintiff was travelling west towards Port Hedland. The defendant was travelling east towards Marble Bar. Each was alone in their vehicle.
The plaintiff had been working at Telfer, an isolated mining settlement. On the early afternoon of 8 August, 1994 he left Telfer to drive to Port Hedland having been given instructions by his employer to do so for the purpose of picking up parts that had not been delivered for the job then at hand. He was to stay in Port Hedland overnight and return to Telfer on the following day if all the parts could be obtained. The plaintiff drove his employer's vehicle, a Toyota Hilux diesel utility. The plaintiff had made the journey from Telfer to Port Hedland on many occasions. He knew that it would take approximately seven hours to cover the distance, approximately 420 kilometres. The journey would be on largely unsealed roads.
Travelling first along the Telfer-Woodie Woodie road he arrived at the T-junction of that road and the Port Hedland/Marble Bar road where he stopped to stretch his legs. While doing so a red Holden utility passed by on the Port Hedland/Marble Bar Road travelling from Marble Bar towards Port Hedland.
Having stretched his legs and checked his vehicle the plaintiff resumed his journey. He travelled about eight kilometres before arriving at the Coongan River crossing. When he reached the crossing he saw the red utility which had passed by him while he was stretching his legs at the T-junction. Having negotiated the crossing he continued westward on an unsealed dirt road approximately 13 to 15 metres wide. The condition of the road was very bad with potholes, corrugations and "a general breakdown of the entire surface of the road". The red utility was still ahead of him. West of the Coongan River crossing he was travelling at between 60 and 80 kilometres per hour following the red utility which was, he said, varying in its speed depending upon road conditions. Both vehicles were kicking up a cloud of dust which, because there was only a light breeze at the time, hung over the road, the dust from the red utility presenting "a slight problem" to the plaintiff.
The defendant was, at the time, working in Marble Bar for a building contractor. He was a carpenter by trade. On 8 August 1994 he had been to Port Hedland in his employer's vehicle, a Toyota Land Cruiser four wheel drive utility. He was returning the Marble Bar, having left Port Hedland at about mid afternoon. A good deal of the road from Port Hedland had been sealed. By about 4.30 pm he was driving east on an unsealed road. He arrived at a point about 28 kilometres west of the Coongan River crossing. He recalls being on a straight stretch of road approaching a long right-hand bend. He saw dust indicating traffic on the road ahead. As he entered the bend he saw the red utility travelling in the direction of Port Hedland. It was not far away from him when he first saw the vehicle rather than dust being kicked up. When the defendant's vehicle passed the red utility they were, he said, about four or five metres apart on the roadway. The defendant said:
"As I approached him I could see a lot of dust so I slowed down and then realised that it was not blowing off the road, it was hanging on the road, so then I - as he passed I sort of went into it and then that was it."
He had not been aware of the presence of the plaintiff's vehicle, it being enveloped in the dust of the red utility.
The plaintiff's vehicle and the defendant's vehicle collided right-hand front to right-hand front somewhere on the road surface, both vehicles enveloped in the dust cloud of the red utility such that neither driver saw the other vehicle prior to the collision.
In his evidence-in-chief the defendant said that as he neared the oncoming red utility he was positioned on the left-hand side of the carriageway which was, he said, about 12 metres wide. He was about a metre from the left-hand edge of the carriageway.
The plaintiff described approaching the long bend, to him a sweeping left-hand bend, travelling about 100 metres behind the red utility. He wanted to overtake the utility and about 1 to 1½ kilometres before the bend he took his vehicle close to the centre of the road in an attempt to see if it was safe to pass the utility. He could see a lot of dust on the road ahead, which indicated the presence of another vehicle, although he could not see another vehicle. In all probability he could see the dust from the defendant's vehicle. The plaintiff says that he moved his vehicle back over to the left-hand side of the road so that he was about a metre from the windrow, that being the line of dirt or gravel thrown up by graders, often marking the edge of the carriageway of an unsealed road. He said that he was slowing down but was enveloped in dust, unable to see anything other than the windrow on the front left-hand side of his vehicle. He said that he was about a metre or a metre and a half from it and inferred from that that he was on the left-hand side of the road. Immediately prior to the collision he was unable to see the red utility travelling in front of him by reason of the dust cloud being thrown up by that vehicle and certainly did not see the defendant's vehicle approaching. In re-examination the plaintiff said:
"I had eased and had a look for oncoming vehicles. I went back and I went in to the edge of the windrow - edge of the road - and I continued on in that path until I couldn't see anything at all."
He was then asked whether there was a point when he lost sight of the windrow. The plaintiff replied:
"There was a very short second - half a second, whatever."
Then, he said, "that was the impact." When asked if there was any chance that his vehicle could have drifted right in the time that he had lost sight of the windrow he replied that there was not because he "was steering to it."
On 19 August 1994 the plaintiff made a statement to a police officer while still in hospital as the result of the injuries that he had received in the motor vehicle accident. In that statement he said:
"I was driving in a north westerly direction on Marble Bar Road and I estimate I would have been travelling at 40-50 kmh. I had been travelling at 70-80 kmh but had slowed down as I was approaching a cloud of dust that was coming towards me about 500 metres away. I was following a red Holden utility - this vehicle would have been approximately 100 metres ahead of me. I attempted to overtake this Holden utility and I had moved near the centre of the road. This is when I saw the oncoming dust cloud. After seeing this dust cloud I had slowed down to about 40-50 kmh and I remember steering my vehicle to the left. When I had positioned my vehicle near the centre of the road, I to the best of my knowledge belief I was on my side of the road. The next thing I remember is a collision, a heap of dust and then a loud bang. At the time of the accident I was driving directly into the sun, that's another reason I know I was not speeding, as the visibility was restricted. I'm not exactly sure of my position on the road at the time of the accident but I believe I was on my side of the road. As a result of the accident I have received multiple fractures to my right arm which is likely to be a permanent injury."
On 14 September 1994 the plaintiff signed another statement which was made at Shenton Park Rehabilitation Hospital in the presence of one Elvina McFaul, an insurance assessor. In that statement he said:
"By about 5.00 pm I had travelled through the hills over the Shaw River and was just back on the dirt section of the Marble Bar Road. I think I was pretty close to Bear Creek. I was travelling behind another vehicle, I think it was a red Holden utility, and the wind was blowing the dust from the north to the south off the road. The vehicle in front of me had been travelling at erratic speeds and as I was aware that we were on a fairly straight stretch of road, I decided to check to see if I could safely pass the vehicle in front. At that stage I was probably 100 metres behind him and was clear of his dust. I moved over on the road to my right to check the road ahead and could see dust from an oncoming vehicle. I immediately moved back to the left and entered the dust from car (1). I remember being able to see the windrow to my left and was definitely on the correct side of the road but still in the dust of car (1), when something hit me or I hit it, I do not really know. I think I was in third gear and would estimate my speed as being between 30 kilometres per hour and 50 kilometres per hour but slowing. My vehicle was hit on the right-hand side, I think right down the side, as in a side swipe."
There was, in evidence before me, a photograph of the defendant's Toyota vehicle which clearly depicted the damage caused by the impact to that vehicle confirming the collision described by the plaintiff, the damage being to the right-hand front fender and down the right side of the defendant's vehicle.
The defendant made a written statement to police at Marble Bar at 9.00 am on the following day. He said that the accident had occurred at about 4.45 pm on the previous day at a point about 70 kilometres west of Marble Bar. He described the accident as follows:
"Travelling south-east along Newman Tabba Tabba Road, towards Marble Bar at 100 kilometres per hour an oncoming vehicle passed me and created dust across the road and down the road, this did not clear as there was no wind and I did not see the vehicle that hit me. This was approximately 70 kilometres from Marble Bar and I was wearing a seat belt."
He drew a sketch of the locality depicting the collision as having occurred in a sweeping bend with both his and the plaintiff’s vehicle depicted as being close to the centre of the road, the plaintiff’s vehicle being slightly further from its left-hand edge of the road than his vehicle.
There was no independent witness to the collision. It seems that the driver of the red utility continued on towards Port Hedland, probably completely unaware of the collision having occurred in his wake. Had he looked in his rear vision mirror immediately after the collision he would have seen only dust. In any event, not long after that he was out of the long bend and the two vehicles were probably out of sight. No police officer attended the scene. There were no photographs or recordings made contemporaneously by any person of the positions of the respective vehicles immediately after the collision. There was no marking of the road surface to indicate a point of collision.
Each driver says that he was on his correct side of the road immediately prior to the collision. The evidence suggests that the defendant’s vehicle was travelling substantially faster than the plaintiff’s vehicle immediately prior to the collision but the speed of the respective vehicles does not appear to have been a significant factor in the circumstances which led to the collision.
For the collision to have occurred at all there are, it seems, three scenarios. The first is that the plaintiff’s vehicle was travelling, at the point of collision, either wholly or in part on its incorrect side of the road. The second is that the defendant’s vehicle was travelling, at the point of collision, either wholly or in part on it’s incorrect side of the road. The third is that both the plaintiff’s and the defendant’s vehicle were travelling, at the point of collision, so close to the centre of the road such that a portion of the right-hand side of each vehicle was on the incorrect side of the road.
In cross-examination the defendant told counsel for the plaintiff that he had travelled that road hundreds of times over a period of about six years. When asked his speed when he first saw the approaching red utility he replied between 80 and 100 kilometres per hour indicating that there was some uncertainty because he did not look at his speedometer all of the time but that it would have been in that range. He said that with the sweeping bend in front of him the presence of the approaching red utility was at first indicated by a cloud of dust to his right. The defendant said that he decelerated when he saw the dust. He said that he passed the red utility and was immediately in the dust, unable to see anything. The utility was about 20 metres away when he first saw it.
Counsel for the plaintiff pressed the defendant in cross-examination to the effect that he was unable to say where his vehicle was at the point of impact because he was blinded by the dust cloud thrown up by the red utility. He put to the defendant that he had "no idea". He replied:
"Well, no, it must have – I was still on the right – left-hand side of the road – right side of the road. I went into the dust side and as I - ."
He confirmed that it was his belief that he was on the right side of the road, that is, that he was not on the incorrect side of the road but rather on the correct side of the road given his direction of travel.
Two things were in the defendant’s favour but not in the plaintiff’s favour. The first was that the defendant was driving with the sun, low in the western sky, behind him and the second is that, as he approached the long sweeping bend, he had clear visibility. By contrast, the plaintiff, driving west, was driving towards the sun low in the western sky. He was following a vehicle which he was hopeful of overtaking. He had very poor visibility by reason of the cloud of dust being thrown up by that vehicle and the position of the sun.
The defendant was aware as he approached the long bend, of the presence of the red utility by reason of the dust cloud being thrown up by it even though the red utility was not then in view. I accept that when those two vehicles passed each was on the correct side of the road and that the defendant knew that he was negotiating a long right-hand bend. The photograph marked Exhibit 1-A depicts a view of the bend from a vehicle travelling east. It illustrates approximately what the defendant would have seen as he approached the bend. There would have been the dust of another vehicle around the bend but, to him, visible only over the top of the low roadside vegetation.
Exhibit 2-A is a photograph depicting the view from a vehicle travelling west on its correct side of the road and approaching the long bend. It is a view that the plaintiff would not have had by reason of the dust from the red utility and the position of the late afternoon sun.
The plaintiff had returned to the scene some six months later and had taken those photographs. He said that there had been no changes in the interim.
The plaintiff gave evidence that about a kilometre or a kilometre and a half from the commencement of the bend he pulled his vehicle out of the dust being thrown up by the red utility across to the centre of the road to see if it was safe to overtake. He could see the dust of another vehicle but not the other vehicle. He pulled back into the envelope of dust still travelling at 40 or 50 kilometres an hour behind the red utility.
The probabilities are that the plaintiff, having pulled back into the envelope, was not aware of the long bend ahead. On his own evidence, when he had emerged from the cloud of dust thrown up by the red utility in order to ascertain whether it was safe to overtake, his visibility of the road ahead would have been affected not only by dust but also by the sun low in the western sky. The defendant went into the long bend clearly knowing that it was there. By contrast, the plaintiff, on the balance of probabilities, did not. Not only could he not see either the oncoming vehicle or the red utility, he lost sight of the windrow at a crucial time. When he did so he was without a reference point driving blindly forwards not knowing that he had entered what was, for him, a long left-hand bend. His inability to see anything meant that, momentarily, he had no reference point by which to steer, not even sight of the red utility. As the red utility, the driver of that vehicle having a clear vision of the road ahead, negotiated the long left-hand bend, the plaintiff did not, his vehicle continuing on a course that, by reason of the presence of the bend, meant that he was moving towards and, in all probability, across to the incorrect side of the road. I find, on the balance of probabilities, that it is the first of the three scenarios referred to by me that occurred.
In that regard, it is notable that, in his statement, made on 19 August 1994, some 11 days after the accident, the plaintiff made no mention of either the bend in the road or the windrow. He did mention that he had attempted to overtake the Holden utility and in doing so had moved to the centre of the road. He remembers seeing the cloud of dust indicating the presence of another vehicle and steering back to the left-hand side. Importantly, he said:
"When I had positioned my vehicle near the centre of the road, I to the best of my knowledge belief I was on my side of the road. The next thing I remember is that a collision, a heap of dust and then a loud bang."
He went onto say that he was not exactly sure of his position on the road at the time of the accident but believed he was on his side of the road. That is in keeping with my findings.
Having regard to the fact that the defendant, with the benefit of a clear view of the oncoming red utility and the bend in the road ahead, passed the red utility without difficulty before entering the cloud of dust being thrown up by that vehicle, I find, on the balance of probabilities, that the defendant was on the correct side of the road even though he too was momentarily blinded by the dust thrown up by the red utility. Although the defendant was tackled at some length in cross-examination over the speed of his vehicle immediately prior to the collision, I find that speed per se did not contribute to the collision. To the extent that the cross-examination as to speed was directed also to the question of credibility, I concluded, having observed the defendant giving evidence, that he did so truthfully.
Curiously enough, the plaintiff, in evidence-in-chief, was asked if at any time he checked to see if he could overtake the red utility. He replied that he did and then went onto describe what he did. In cross-examination he was asked:
"In fact at one point you wanted to overtake it?"

He replied:
"I didn’t want to overtake it."
He was then asked if he took steps to overtake the vehicle and he replied:
"To see if it was possible, yes."
He denied that he had been travelling faster than the red utility or that it had been holding him back but it follows from the fact that the red utility passed the plaintiff’s stationary vehicle while the plaintiff was stretching his legs at the junction of the Telfer road and the Marble Bar/Port Hedland road and the fact that he had caught up with that vehicle by the time they reached the Coongan River crossing some eight kilometres to the west, that he was travelling faster than the red utility unless, of course, the driver of the red utility had himself slowed down appreciably or stopped for a short break between the T-junction and the Coongan River crossing. Whatever the case, I find that the plaintiff, beyond the Coongan River crossing, was intent upon overtaking the red utility. Both the plaintiff and the defendant had driven the road many times before. According to the defendant he had been on an unsealed road for about four kilometres leading up to the point of collision. The plaintiff would have known that the sealed road was not far ahead and yet he chose to attempt to overtake the red utility in very dangerous circumstances having regard to the state of the road, the dust being thrown up by the utility and the difficulties of visibility compounded by the sun being low in the western sky, the direction in which he was travelling. Had he waited back a safe distance such that he was not travelling in the dust of the red utility he would have afforded himself a clear view of the road ahead including any change in the road conditions or the course of the road and any oncoming traffic. He chose not to do so, depriving himself of the ability to see clearly ahead, the windrow, for a time, being his only reference point and then, at a crucial time, with no reference point such that his vehicle, without him knowing it, was allowed to travel to the incorrect side of the road and into the path of the defendant’s oncoming vehicle. Had he not done so, staying back a safe distance and deferring his intentions to overtake for the few kilometres of dirt road left before again travelling on sealed road, the plaintiff’s and the defendant’s vehicle would have passed safely metres apart from one another on what was an ample carriageway as the defendant’s vehicle and the red utility had done a moment before.
It follows from the foregoing that I find that the motor vehicle accident involving vehicles driven by the plaintiff and the defendant, respectively, at about 4.45 pm on 8 August 1994 on the Marble Bar/Port Hedland road was caused by the negligence of the plaintiff.
The plaintiff’s case against the defendant is dependant upon the plaintiff proving on the balance of probabilities that the defendant’s vehicle had been driven by the defendant onto the incorrect side of the road or that by some means he allowed his vehicle to travel to the incorrect side of the road such that there was a collision with the plaintiff’s vehicle. I have found, on the balance of probabilities, that this did not occur. Having regard to the particulars of negligence alleged against the defendant by the plaintiff in paragraph 5 of the statement of claim, I find that there was no evidence that the defendant failed to keep any or any proper lookout or that he drove without due care and attention. To the extent that it might be said, in accordance with paragraph 5(c) of the plaintiff’s statement of claim, that the defendant drove at a speed which was excessive in all the circumstances having regard to the difficulties caused by dust, I find that the speed of the defendant’s vehicle immediately prior to the accident was somewhere between 70 kilometres per hour and 100 kilometres per hour and that, whatever it was, it did not contribute to the accident. Paragraph 5(f) of the plaintiff’s statement of claim alleges that the plaintiff failed to brake, swerve, steer or otherwise manoeuvre his vehicle so as to avoid the accident. I find that he was not negligent as alleged. The defendant was travelling on a carriageway wide enough to permit the passage of two vehicles travelling in opposite directions without difficulty. As with the appearance of distant headlights at night, the presence of another vehicle was indicated by the pall of dust being thrown up by that vehicle notwithstanding that the defendant could not see the vehicle. When he did see the oncoming vehicle he was approaching or into a long bend. The road being unsealed it may have been dangerous, in such circumstances, to break heavily. There was, so far as the defendant could see, only the red utility approaching. He was not aware of the existence of the plaintiff’s vehicle. On my findings, he passed the red utility safely with several metres between them and would have passed the plaintiff’s vehicle equally safely had it not been for the fact that the plaintiff had unwittingly allowed his vehicle to travel onto the incorrect side of the road.
If follows from the foregoing that the plaintiff’s claim must be dismissed. The circumstances of this case are such, however, that I should make a provisional assessment of the plaintiff’s damages notwithstanding the failure of the plaintiff’s claim.
The plaintiff, at the time of the accident, was 40 years old having been born on 26 September 1953. He was educated at Belmont Primary School and Belmont High School leaving school at the age of 16 years having completed year 10. He was an average student who struggled in both mathematics and english. He is right-hand dominant.
It appears that the plaintiff had no difficulty finding work and, over the years, worked in a variety of jobs mostly in a manual or labouring capacity. He spent a year in the Army, mostly in New South Wales, but did not obtain any productive skill or qualification during that time. His work history demonstrates an inclination to be away from the metropolitan area, working from time to time in the Eastern Goldfields, the Pilbara and the Kimberley.
His longest period of employment appears to have been with Wreckair Hire where he became the Manager of his employer's Port Hedland depot. He worked for Wreckair Hire for six years.
On 2 February 1994 the plaintiff left Wreckair Hire and joined Simon Australia Pty Ltd, an engineering company. He joined as a trades assistant. He said he had grown tired of the work at Wreckair Hire and wanted an easier job. He was assisting a boilermaker. It was heavy work but presumably involved less responsibility and office work. The plaintiff's work with Simon Australia took him to Telfer about one week before the motor vehicle accident. He was working, as a general rule, 6 days a week for 10 hours per day. The overtime made the job worthwhile.
Following the motor vehicle accident the plaintiff's next recollection was of his vehicle being on the road surface on its left-hand side. He, being belted in to the driver's seat, was "up in the air". He managed to struggle out of the vehicle. Not long after the collision Normal Alexander Clarke and Rodney Mitchell arrived at the scene. They were travelling to Port Hedland from the Bamboo Creek Gold Mine. According to Mr Clarke an off-duty police officer arrived some minutes after them, offering assistance to the plaintiff and attempting to organise an ambulance for him. The Royal Flying Doctor Service could not assist so a decision was made to take the plaintiff to Port Hedland by road. Mr Clarke travelled with the plaintiff in a Toyota Landcruiser Station Wagon being driven by the manager of a nearby Main Roads Department camp. They went directly to Port Hedland Regional Hospital.
Late in the evening of the plaintiff's admission to hospital he was taken to theatre where a wound to his right elbow was debrided with partial reduction of the bone fragments. A plaster of paris backslab was put in place. The plaintiff had been diagnosed as having a compound comminuted fracture around the right elbow, involving the radius, ulnar and humerus. He also had bruising to his neck, hips and legs. Upon review on the following morning a decision was made to send the plaintiff to Royal Perth Hospital for further management. He travelled later that day by Royal Flying Doctor Service.
The notes from Royal Perth Rehabilitation Hospital indicate that the plaintiff was admitted to Royal Perth Hospital on 9 August 1994. Upon arrival the plaintiff's wound was inspected. He was found to have a grade 3B comminuted intra-articular fracture of the distal humerus and supracondylar region of the humerus and olecranon fossa. There were also fractures of the right distal radius and ulnar shaft. The plaintiff was again taken to theatre on the day following his admission where the wound was further extensively debrided with an open reduction with internal fixation of the distal humerus, olecranon ulnar shaft and distal radius with screws, a plate and a tension band wire system.
The plaintiff was transferred to Royal Perth Rehabilitation Hospital on 25 August 1994 having recovered well post-operatively. The plaintiff underwent further rehabilitation and was finally discharged on 19 September 1994 with approximately 100 degrees of movement from 30 degrees to 130 degrees flexion and approximately 75 per cent of full range of pronation and supination. Arrangements were made for the plaintiff to have hydrotherapy and outpatient physiotherapy at Broome Regional Hospital. While at Royal Perth Hospital and Royal Perth Rehabilitation Hospital the plaintiff was under the care of Professor A P Skirving, an orthopaedic surgeon.
In a report of 27 January 1995 Professor Skirving noted that there were no complications from the surgery and that the wound had healed well. The plaintiff was seen in the outpatient clinic of Royal Perth Hospital on 1 November 1994 and his range of movement was much as it had been at the time of his discharge. The plaintiff was continuing to complain of severe pain on movement. Professor Skirving reviewed the plaintiff again on 27 January 1995. There were continuing complaints of pain on movement, the spells of pain being often acute and sharp. There was also a generalised ache in the elbow. The plaintiff reported difficulties with many activities including such simple things as combing his hair or winding a car window.
In early 1995 Professor Skirving became unwell and the plaintiff came under the care of Mr Gregory Janes, an orthopaedic surgeon. The metal work installed during surgery on 10 August 1994 was removed in theatre on 6 April 1995. X-rays had earlier revealed difficulties with some of the metal work. In addition, the olecranon had not healed. An attempt was made in surgery on 6 April 1995 to resolve that problem by way of a bone graft from the right iliac crest. Some six weeks later Mr Janes reported that the plaintiff was still complaining of significant discomfort in the right elbow. The wounds were found to have healed. The range of elbow movement was from 30 degrees of flexion to 140 degrees with full pronation but without about 20 degrees of supination. Mr Janes was then of the view that there had been an excellent outcome from an extremely severe injury although there was still a significant risk of post-traumatic degenerative change.
The plaintiff had initially returned from Perth, upon discharge from Royal Perth Rehabilitation Hospital, to Broome where he had family. Some six months after the motor vehicle accident the plaintiff returned to work at Port Hedland with his employer at the time of the accident. He made himself busy in the office, often creating tasks to occupy himself and undergoing training in first aid.
The plaintiff continued to suffer from pain in the right forearm and elbow requiring regular pethidine injections, MS Contin, Digesics and Panadeine Forte. The intake of analgesics had caused him to be constipated which led, while at Royal Perth Rehabilitation Hospital, to an acute posterior anal fissure. That, in turn, led to severe pain.
The plaintiff continued on with his employer at Port Hedland but there was no indication that his position would continue indefinitely. There was apparently no permanent position for him. There was no prospect of him returning to his pre-accident occupation with that employer. Eventually, because of that difficult position, the plaintiff resigned his employment in January 1996. He returned to Broome because of the presence of family there.
Shortly prior to his resignation the plaintiff had returned to Perth on 17 January 1996 and was admitted to St John of God Hospital on the following day. In surgery Professor A P Skirving removed the plate and screws from the right ulnar. The plaintiff was discharged on 19 January 1996. He was still experiencing significant pain with severe episodic pain against a background of a constant ache.
In a report of 7 May 1996 Mr Skirving indicated that the plaintiff would not require any further specific medical treatment and certainly no surgery. He would continue to require minor analgesics. He described the outcome in terms of the elbow injury as being "an excellent result". In a comprehensive report of 15 September 1997 Professor Skirving noted that the plaintiff continued to complain of pain in the right elbow worsened by activity, particularly when lifting. There were also complaints of pain in the region of the anterior distal forearm wound, the site of the insertion of the radial plate for a fracture of the radius.
On examination he noted that the plaintiff's elbow was of normal shape with no swelling and little induration. His scarring from surgery had healed well. The plaintiff was able to extend his elbow to within 35 degrees straight position and flex to approximately 130 degrees. Pronation and supination were essentially free. There was a normal range of wrist, hand and finger movements. He could detect no motor, sensory or reflex deficit in the arm.
Professor Skirving observed that he could find no reason to explain any ongoing pain in the right forearm related to the plated right radius. There was no evidence that the plate was loose and the fracture was well healed. His opinion was that the plaintiff was not totally disabled and that, with appropriate re-training and motivation, he could perform light manual work and carry out administrative activities. He mentioned driving work such as courier or taxi driving. He did not anticipate any dramatic change in the plaintiff's condition.
The plaintiff said that he attempted re-training by undertaking a TAFE course in information technology which was not successful. Use of a keyboard meant exacerbation of the pain in the elbow which meant more analgesics, which in turn affected his ability to concentrate on the task at hand.
To his credit the plaintiff attempted to provide for his future financial independence by entering into a joint venture with two friends, Mark Rice and Paul Allan. Both were boilermakers by trade. The venture was carried on by a company called Rice Allan Pty Ltd which ran a business of boilermaking, boat building and repairs at Broome. It was a venture that the plaintiff had thought about before the accident. As I understand his evidence steps were taken towards establishing the business during the plaintiff's time with his employer in Port Hedland prior to January 1996. The actual physical work of the business was to be carried out by Messrs Allan and Rice. The plaintiff became a shareholder and director, was to provide the capital of the business and to receive a 1 per cent share of gross profits. The plaintiff devoted his savings towards this venture, an amount of about $40,000, in two separate payments. It failed. Receivers were appointed in November 1996. The money was lost.
The plaintiff attended upon his general practitioner, Dr T J O'Sullivan at Broome on 7 January 1997. He complained of persistent pain and disability in his right arm. At the time the plaintiff was not working. He was applying for a pension.
On 6 June 1997 the plaintiff attended upon Mr E R Griffiths, surgeon, who reported on that day maximum extension of the right elbow at 150 degrees indicating a 30 degree loss from full extension. There was limitation on flexion to the extent of 13 degrees of full flexion. Pronation of the forearm bones upon the elbow was good, regarded by Mr Griffiths as being within normal limits. The ability to grip with any power in the right hand was limited by pain. There was also pain in the actual articular surface of the lower end of the humerus, to the olecranon surface. Mr Griffiths said that this was because of arthritic changes developing due to the irregularity of the ball and socket joint at the elbow which caused pain and inhibited function generally. It was pain at the elbow joint, said Mr Griffiths, which was causing most of the plaintiff's problems. He otherwise had an acceptable range of movement but pain inhibited normal usage. Mr Griffiths concluded that the plaintiff's capacity for employment at that time was "virtually nil" noting that the plaintiff's disability had to be expressed in terms of functional loss of the right upper limb, not just the elbow joint itself. He foresaw further changes and decreasing functional usage of the right elbow.
To add to the plaintiff's problems, the difficulties of continuing pain which required continuing analgesia and the loss of the amenities of life occasioned by the injury, manifested themselves in the form of a growing depressive illness, first noted by Dr D A Evans, a general practitioner of Port Hedland in August 1995. Dr P W Burvill, consultant psychiatrist, saw the plaintiff on 18 February 1999 and, in his report of 22 February 1999, was able to give some perspective to the development of the plaintiff's difficulties. He noted that, following the accident, the plaintiff gradually became depressed as each of the various operations failed to produce the improvements in usage of his right arm and reduction of pain anticipated by him. He referred to a major depressive illness having developed approximately 18 months ago. At the time of reporting Dr Burvill thought that the depressive illness was only under partial control by reason of large doses of Amitripyline. He summarised:
"Psychiatrically, he should not have any permanent disabilities but would need to take anti-depressant medications on a long term basis until the pain and associated disabilities are fully controlled. These appear to have entered a rather chronic stage."
In a later report of 23 November 1999 Dr Burvill said:
"As far as I can assess, his capacity for employment is severely compromised by the pain and physical disabilities and his psychiatric condition. At present I do not believe that he will be able to undertake his former type of work, either on a part-time or full‑time basis, or any comparable type of work, on account of his level of depression, his poor concentration and difficulty in dealing with the general public without developing anxiety symptoms."
In cross-examination before me Dr Burvill agreed that a depressive illness is very frequently associated with chronic pain. He referred to the possibility of a "vicious circle" whereby, in serious depression or anxiety a person's pain threshold might be lowered resulting in a lower tolerance to pain, in turn reinforcing the depression or anxiety state. Dr Burvill saw a very close connection, in the case of the plaintiff, between his physical condition (his disabilities and pain) and his depression. He thought that if there was an improvement in the former there might be an improvement in the latter but that if his situation became chronic in terms of the latter he would be more reserved about his prognosis.
I heard evidence from two specialist orthopaedic surgeons, Professor A P Skirving and Mr J E Crockett. The latter spoke of the likelihood of degenerative change in the right elbow which would, he said, bring with it more pain and more restriction of movement.

I heard a good deal of evidence about what the future might hold in terms of treatment. Mr Crockett through that an arthrodesis or fusion of the elbow joint might be necessary. If degenerative change became so bad and the disability and pain so severe then either an arthrodesis or joint replacement might be necessary. He agreed that the latter might involve surgery on three or four occasions each joint replacement, by reason of the complexity of the elbow joint, lasting for about 10‑15 years. Mr Crockett indicated that he would prefer presently to take the path, if such treatment were necessary, of an arthrodesis rather than an elbow replacement. He explained that with technological development and improvement a prosthetic joint might, in time, operate better and last longer. By contrast, an arthrodesis would relieve the pain completely by fusing the joint and eliminating movement other than rotation. Fusion provides the patient with a solid joint which will not produce further problems. He indicated that it was a difficult choice and that he might choose a joint replacement in 10 years time depending upon developments in medical science.
Professor Skirving spoke of the difficulties of both. Clearly, with a fusion of the joint, the patient has to make the unenviable decision as to the position in which the arm will be fused. The patient must then live with the permanent implications of that choice albeit, painlessly.
I asked Professor Skirving about the nature of the injury. He replied:
"It was one of those injuries that you look at and you say ‑ you know, one's horrified when you see it. You realise that this is, you know, a major problem for life. This not something that's there just for the duration of this accident. This is a life time problem ahead and there is no way I minimise the severity of the injury itself."
Professor Skirving thought that, given the range of movement available to the plaintiff, neither a fusion nor joint replacement were indicated.
The plaintiff relied upon a report and evidence from Mr Baskaranathan, a consultant physician in rheumatic diseases. In his report of 26 February 1998 Mr Baskaranathan referred to the operational scars which, he said, appeared to be well healed. I did, during the course of the plaintiff's evidence, view the scars on his right arm and noted the extent of them. On examination the plaintiff was found to have a range of movement at the elbow limited by 30 per cent. The range of flexion was from 30 degrees to 130 degrees. Pronation and supination movements at the elbow did not cause any pain. The findings, on examination, when compared with findings made by other practitioners appeared much the same with hardly any improvement or deterioration.
On his recommendation the plaintiff underwent a stellate ganglion block performed by Dr David Perlman. It afforded the plaintiff pain relief lasting about five hours suggesting to Mr Baskaranathan that there was, in the plaintiff's situation, an element of sympathetic mediated pain.
Professor Skirving had indicated that he had been unable to identify why the plaintiff's pain should be so severe and so constant. Mr Baskaranathan referred to the possibility of an enhancement of the pain experienced by reason of a sympathetic mediated response to pain in the arm. Professor Skirving agreed that sympathetic implications can arise following trauma. Another factor which might explain Professor Skirving's slight bewilderment might be the association, referred to by Mr Burvill, between a depressive and/or anxiety state and reduced pain thresholds.
In passing I should mention a curious development in the plaintiff's left arm which, it appears, bears no relationship to the accident on 9 August 1994. The plaintiff told me that he had surgery in Broome at the Broome Regional Hospital to his left wrist and elbow on 16 March 1997, the purpose apparently being to free a cracked nerve. In the overall context of the plaintiff's claim the apparently minor difficulties with his left arm are of very little significance.
As to the plaintiff's current circumstances he said that, after the failure of his short lived business venture not a great deal happened. He said that he no longer has friends in Broome other than Mr Toby Goad. Mr Goad runs a business called "Broome Second Hand Tyres". In exchange for the use of a caravan at the site of Mr Goad's business the plaintiff sweeps floors, removes old tyres, makes tea and does odd jobs for him. He said that he was able to sweep and carry tyres with one hand without pain. Despite his various efforts in rehabilitation courses he said that he undertakes no office work for Mr Goad. He gave evidence of having applied for a job as a storeman with a local towing company. That apparently came to nothing.
In his report of 15 September 1997 Professor Skirving said:
"I remain of the opinion that this man is not totally disabled and that with appropriate re‑training and motivation he could perform light manual work and certainly do any form of administrative type position. He could, similarly, do jobs which require driving such as courier or taxi work."
Mr Baskaranathan in his report of 26 February 1998 said:
"With respect to capacity for employment, it is my opinion that he is not fit to return to any heavy manual work. Disability due to the pain will certainly restrict him from carrying out most of the duties which would require dexterity of his arm. It is very apparent to me that this impairment has restricted his social life and this includes his recreational activities. I do feel that he will be able to return to some form of administrative type of work or light manual work."
Mr J E Crocket said in his report of 26 October 1998:
"I believe that Mr Chappell's chances of a job on the open market have been significantly reduced but his working life in a suitable sedentary non‑manual job has not been shortened. There has been loss of enjoyment of life in that he will be extremely limited in general activities around the house and garden, particularly with regard to heavy tasks and there will also be some significant loss of independence. Driving will continue to be somewhat limited. I think he would be best with power steering and electric windows. He will only, at best, be able to rest his right arm on the steering wheel and maintain some grip for temporary periods. Although this would be improved by an arthrodesis, he would then lose flexibility."
By contrast, the psychiatrist Mr P W Burvill said in his report of 23 November 1999:
"As far as I can assess, his capacity for employment is severely compromised by the pain and physical disabilities, and his psychiatric condition. At present I do not believe that he will be able to undertake his former type of work, either on a part‑time or full‑time basis, or any comparable type of work, on account of his level of depression, his poor concentration and difficulty in dealing with the general public without developing anxiety symptoms. Any form of work which requires any lifting or manual work would affect his physical state and I would advise you to consult his doctors for opinions regarding this. At this stage I find it difficult to give a long-term prognosis regarding his future ability to work in any of these positions, as it is only recently that there has been any noticeable improvement in his psychiatric state. And that improvement has been modest, and at this stage is heavily dependent upon the enthusiasm and encouragement given to him by his friend."
The latter reference is to Mr Goad.
I am in the position of being able to assimilate the evidence of the various specialists and form a composite picture. That picture, in my view, does not afford ground for optimism either in the short or long term. Clearly both the physical symptoms and the depressive illness are resultant upon the motor vehicle accident the subject of the plaintiff's claim. They are inter‑related. Although there is some suggestion, on the one hand, that the plaintiff's psychiatric problems might be resolved over a period of about two years, the plaintiff's pain state does appear to be chronic and the likelihood of degeneration of the elbow joint is substantial leading me to conclude, on the other hand, that, having regard to all aspects of the plaintiff's current situation, he has very limited retained earning capacity with very little prospect that the situation will change other than to get worse. It appears that, with degeneration, the plaintiff may be forced to consider, at some time in the future, either a fusion of the joint or the insertion of a prosthetic joint. The former may relieve him of pain but will rob him of whatever effective mobility he may have, to that point, retained. The latter may relieve him of pain and provide him with mobility but will not be without problems and the need for further replacements. Given that, presently, the plaintiff is aged 46 years and 5 months it does seem likely that, if either event does occur, it will occur late in what otherwise would have been the plaintiff's effective working life.
The defendant did provide me with a book of Commonwealth Rehabilitation Service reports, seven in number, all produced during 1995. At the time the plaintiff was still in the employ of his pre‑accident employer who had, incidentally, displayed a good deal of generosity towards the plaintiff.
I was not presented with any evidence as to the availability in Broome of work which might accommodate the plaintiff's disabilities. Counsel for the plaintiff did however, in closing, concede a residual earning capacity of 15 per cent of his pre-accident capacity. I shall base my assessment of future economic loss on that concession. The very fact that the plaintiff does carry out some light manual work for Mr Toby Goad, albeit presently unpaid, suggests that he might be able to undertake part-time, if not full-time, paid work of that description. Although he has no specific qualifications the plaintiff has had a varied working life and has shown, in the past, that he is capable of undertaking some clerical work. I accept, as his evidence demonstrates, that there is some scope for obtaining work that might suit him in Broome. It seems likely that he will remain resident there.
The future, from a medical point of view, ranges from the maintenance of a gradually deteriorating status quo in which the plaintiff will continue to manage his pain by analgesics to surgical intervention at some stage in the form of either an arthrodesis or the insertion of a prosthetic joint. I have already referred to the advantages and disadvantages of those two courses. The former, fusing the arm into a particular position, should, in theory, permanently remove the pain presently suffered by the plaintiff but would not be likely, in my assessment, to make any significant difference to the plaintiff's capacity to earn an income. The insertion of a prosthetic joint seemed, according to Mr Crockett, to be a less likely option. He suggested that a difficulty with a prosthetic joint was that it would tend to loosen with use and that overuse would hasten the need for replacement because, as he said, the bone in which the parts of the prosthesis are embedded tend to give way. That problem, he said, was already significant with respect to artificial hips and could well turn out to be so with artificial elbows. He saw the option of a prothesis as being confined to relatively old and less mobile patients where less rather than more use of the arm would place stress on the prosthesis. He remarked, with respect of prosthetic joints:
"They do relieve a lot of the pain, these restore a lot of the movement but not all is relieved by any means."
I conclude from the foregoing that as between an arthrodesis and the insertion of a prosthetic joint, the latter is less likely but that if it were to be undertaken at some stage in the future, the limitations which accompany that procedure and the need for future replacement would, in my assessment, bring about no significant change in the plaintiff's ability to earn an income. I am confirmed in my conclusion that the plaintiff has, by reason of his injuries, retained only 15 per cent of his pre-accident earning capacity.
As to the various heads of damage claimed I make the following assessments:

General damages

Prior to the accident the plaintiff was an active man both in terms of his work and social life. He had enjoyed yachting, sailing from both the Port Hedland Yacht Club and the Dampier Yacht Club. He enjoyed fishing and camping on a regular basis. His other recreations included playing darts and pool. Because of his injury he no longer sails, nor does he engage in darts or pool. He still goes fishing, he said, from time to time but in a response perhaps reflecting his depressed state rather than any other factor he said, "I never catch anything." He no longer goes camping. He still drives a motor vehicle, steering only with the left hand.
Pain is a continuing problem. Prior to the accident he had no difficulty sleeping. He now estimates that he has two or three hours good sleep a night. He takes Amitriptyline, Tegeretol and Digesic on a regular basis. His arm is generally painful but more so if he brushes or bumps it accidentally.
The plaintiff said that he now has a very limited social life compared with his situation prior to the accident. That appears to be due to his depressive illness rather than to the physical symptoms of the injury.
In summary, the plaintiff suffered a very serious injury to his elbow, the consequences of which have been, and will continue to be, painful over a substantial period. He has undergone surgery on several occasions and may do so again in the future depending upon the state of his pain. He may be subject to arthritic change and degeneration in the joint generally. I have noted his scarring which is significant. The plaintiff's recovery from surgery and rehabilitation, often with the use of strong analgesics, has not been without the difficulties of side effects such as the acute posterior anal fissure referred to earlier.
Having regard to the provisions of ss 3A, 3B and 3C of the Motor Vehicle (Third Party) Insurance Act 1943 ("the Act") and to the judgment of the Hon Justice Franklyn in Wylde v 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997, I must assess damages for non-pecuniary loss as a proportion of the maximum amount that may be awarded which is to be awarded only in the most extreme case. For the purposes of my decision-making the maximum amount prescribed is $219,000 being amount A. Amount B is $10,500 and amount C is $33,000. In my opinion the nature and extent of the injuries sustained by the plaintiff and their effects amount to 25 per cent of the most extreme case and I would therefore award, by way of general damages, $54,750. That amount being in excess of the sum of the amounts B and C, no deduction would be required under the provisions of s3C.

Past economic loss

It was submitted by counsel for the plaintiff that a fair estimate of the plaintiff's pre-accident earning capacity is $705 net per week. There was agreement as to the plaintiff's calculation of past loss of earnings on that basis. I therefore calculate the plaintiff's past loss of earnings for the period 8 August 1994 to 17 March 2000 as follows. That period is 292 weeks which, when multiplied by $705, results in a figure of $205,860. From that amount I must deduct the plaintiff's actual net earnings during the years ended 30 June 1995 and 30 June 1996, an amount of $29,345 leaving an amount of $176,515. Having regard to the decision in Fox v Wood (1981) 148 CLR 384 I should add the amount of income tax paid by the plaintiff on workers' compensation payments received by him between 8 August 1994 and 30 July 1995 an amount of $1,006. I would therefore assess the plaintiff's past loss of earnings at $177,521.

Past loss of superannuation benefits

Counsel informed me that there was agreement that the plaintiff had lost the benefit of superannuation payments which would otherwise have been made on his behalf by his employer based on an amount of 6 per cent of his gross salary calculated from 1 February 1996 to 24 November 1999. The agreed amount was $3,500. I would allow that amount.

Future loss of earning capacity

I accept that, but for the accident, the plaintiff would have worked until normal retiring age at 65 years. The plaintiff being currently 46.5 years old I should calculate his future economic loss based upon the likelihood that he would have worked for a further 18.5 years. Had he suffered a total loss of his pre-accident earning capacity his loss, using the 6 per cent table of multipliers, over that period would be $422,648. In accordance with my earlier findings from that amount I would deduct 15 per cent based on my assessment of the plaintiff's retained earning capacity and a further 5 per cent to take into account the normal vicissitudes of life, both favourable and unfavourable. I would therefore have awarded the sum of $338,118 under this head of damage.

Future loss of superannuation benefits

Taking guidance from the judgment of Anderson J in Jongen v CSR Ltd & Anor (1992) Aust Torts Reports 81-192 at p 61,714 I propose to apply a discount of 30 per cent for the cost of scheme administration, the risk of losses and the possibility that the plaintiff might not always be, during the course of his future employment, entitled to compulsory superannuation. Assuming that contributions would have otherwise been made by his employer to the extent of 7 per cent of his gross salary and adopting the agreed estimate of the plaintiff's pre-accident earning capacity of $1,020 gross per week, the plaintiff's pre-accident superannuation contribution would have been $71.40 per week. Applying a 6 per cent multiplier over a period of 18.5 years I arrive at a gross figure of $42,804 which I would discount by 30 per cent arriving at a sum of $29,963. I should discount that amount, having regard to my findings as to retained future earning capacity by a further 20 per cent arriving at a final amount for lost future superannuation benefits of $23,970. I should note that the calculation under this head, apparently agreed by counsel in terms of the plaintiff's schedule of economic loss, appears to be based erroneously upon a gross weekly amount of $425.00.

Future medical and pharmaceutical expenses

I am informed by both counsel that the amount under this head of damage is agreed at $13,000 and I would allow that amount.

Special damages

I am informed by both counsel that they are agreed that an amount of $4,500 should be allowed under this head of damage and I would allow that amount.
In summary, my provisional assessment of the plaintiff's damages had he succeeded in his claim against the defendant with no finding of contributory negligence against him would be as follows:
General damages  $ 54,750
Past loss of earning capacity   177,521
Past loss of superannuation benefits  3,500
Future loss of earning capacity   338,118
Future loss of superannuation benefits                 23,970
Future medical and pharmaceutical expenses        13,000
Special damages       4,500
Total:  $615,359