Pangallo v Smith
[2015] ACTSC 313
•28 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Pangallo v Smith & Anor |
Citation: | [2015] ACTSC 313 |
Hearing Dates: | 20, 21, 22, 23, 24 July 2015 |
DecisionDate: | 28 July 2015 |
Before: | Mossop AsJ |
Decision: | See [102] |
Category: | Principal Judgment |
Catchwords: | PERSONAL INJURY – Pedestrian and motor vehicle accident – consideration of contributory negligence – consideration of duties of pedestrian and driver in particular circumstances – determination of extent of causally related damage – assessment of evidence of circumstances of plaintiff prior to accident including medical history of physical ill health and limited psychological ill health and manifested intention to not return to paid work EVIDENCE – Credibility evidence – operation of ss 103 and 106 of the Evidence Act 2011 (ACT) – whether reference in s 103 is a reference to oral evidence given by witness |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 100 Evidence Act 2011 (ACT) ss 60, 103, 106, 136 Court Procedures Rules 2006 (ACT) |
Cases Cited: | Becker v Queensland Investment Corporation [2009] ACTSC 134 Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 R v Welsh (1996) 90 A Crim R 364 |
Texts Cited: | Stephen Odgers, Uniform Evidence Law, eleventh edition |
Parties: | John Pangallo (Plaintiff) Timothy Smith (First Defendant) Insurance Australia Limited trading as NRMA Insurance (Second Defendant) |
Representation: | Counsel Mr F Tuscano (Plaintiff) Mr J Pappas (First and Second Defendants) |
| Solicitors Ken Cush & Associates (Plaintiff) Sparke Helmore (First and Second Defendants) | |
File Number: | SC 160 of 2014 |
Introduction
The plaintiff, John Pangallo, was injured when he was struck by a vehicle being driven by the first defendant on 20 September 2011. He has sued the first and second defendants for damages. Breach of duty is admitted, the extent of causally related damage is in dispute and a defence of contributory negligence has been pleaded.
The accident
The plaintiff lived in Ngunnawal. In September 2011 he was 63 years old. It was his usual practice to go for a walk in the evening in the area around his home. On 20 September 2011 he intended to do a circuit from his house in Unaipon Avenue northwards along that street, turning right and walking north-east along Len Waters Street, turning right into Mirrabei Drive and walking south along that street, turning right into Wanganeen Avenue before completing the circuit by turning right into Unaipon Avenue and returning to his house. He estimated that his walk was anticipated to take around 40 minutes. While walking south-west along Wanganeen Avenue he was required to cross over Jandamarra Street which intersected with Wanganeen Avenue. His evidence was that he had almost completed his crossing of Jandamarra Street and was within a metre of the edge of that street when he was struck by the first defendant’s vehicle, a four-wheel drive. There was some dispute about precisely where the accident occurred to which I will return below. The plaintiff was knocked to the ground, striking his face and the left-hand side of his body. The first defendant stopped the vehicle and attended to the plaintiff, calling for an ambulance and making contact with the plaintiff’s daughter. Police and ambulance officers attended the scene as did the plaintiff’s daughter. He was taken to the Canberra Hospital where he remained for six and a half weeks.
Where and why did the accident occur?
There was a difference in the evidence between that of the plaintiff and his daughter on the one hand and that of the first defendant on the other as to where the accident occurred. The relevant intersection is that between Jandamarra Street and Wanganeen Avenue. That is a T intersection at which Jandamarra Street terminates. There is a footpath located on the western side of Wanganeen Avenue which travels in a north-south direction and is interrupted by the end of Jandamarra Street where it terminates at Wanganeen Avenue. There is also a footpath on the southern side of Jandamarra Street which connects with the north-south footpath located along the western side of Wanganeen Avenue. The difference between the parties was whether the accident occurred close to the intersection between Jandamarra Street and Wanganeen Avenue in a manner consistent with the plaintiff being hit while he attempted to cross Jandamarra Street and then continue south along the footpath on the western side of Wanganeen Avenue or whether it in fact occurred some distance down Jandamarra Street consistent, instead, with the plaintiff returning to his house by a different route to that which he gave evidence of.
Where the accident occurred is relevant to the issue of contributory negligence as well as a factor that may affect the assessment of the reliability of the plaintiff’s evidence more generally.
The three witnesses who gave evidence relevant to this issue were:
(a)the plaintiff;
(b)the plaintiff’s daughter, Elizabeth Pelle;
(c)the first defendant.
The plaintiff gave evidence that he was walking in a southerly direction across Jandamarra Street so as to connect up with the continuation of the footpath on the other side. He said that prior to crossing the road he looked both ways and saw no vehicles either behind him coming from the north along Wanganeen Avenue or approaching from the south towards him. He said he had his earphones in, connected to a transistor radio which was not playing loudly. He could not recall whether he was listening to music or talk. He said he was wearing a beanie and carrying an umbrella. He said that he was struck about one step away from the kerb on the far side of Jandamarra Street. He said he was struck by the left-hand side of the bull bar on the vehicle. He fell and ended up on the footpath. He described that the vehicle “threw [him] up in the air” and that he “was thrown around like a rag doll on the footpath”. I do not place great significance on his literal description other than to indicate that he fell in a completely uncontrolled manner. His evidence was then that he was assisted by the first defendant who had stopped his vehicle and reversed it back to where he was located. The locations where he was struck and where he ended up on the ground were illustrated on exhibit 11.
His daughter, Elizabeth Pelle, gave evidence that she received a telephone call from the first defendant and immediately attended the scene which was approximately one and a half minutes away by car. She described the location where the plaintiff was lying in a manner substantially consistent with the plaintiff’s evidence and illustrated it on what became exhibit 34.
The first defendant gave evidence that he was at that time living in Jandamarra Street. He had travelled home from work and had turned into Wanganeen Avenue from Mirrabei Drive. He observed a vehicle travelling north along Wanganeen Avenue and waited for that vehicle to pass before turning right into Jandamarra Street. He said he waited 20 to 30 seconds for the vehicle to pass but later revised that to 20 seconds. His turning indicator was on. He said that he turned right and was travelling in first gear when he hit the plaintiff. The first he saw of the plaintiff was when he hit him. He said he observed the plaintiff’s grey hair and saw him fall to the ground. He then stopped the vehicle immediately, got out and assisted the plaintiff. He said that the plaintiff’s legs were on the road side of the gutter but that his body and head were across the footpath and onto the grass. He lifted his legs and put them on the footpath and turned the plaintiff into the recovery position. His evidence was that this occurred four or five car lengths down Jandamarra Street at a point beyond the driveway into the first house on Jandamarra Street. He marked the position where he said the accident occurred on exhibit 36. The location which he gave evidence of would be inconsistent with the plaintiff having been intending to continue travelling down Wanganeen Avenue. Had he been intending to continue down Wanganeen Avenue there is no reason why he would have been located where the first defendant gave evidence that he was immediately after the accident.
I preferred the evidence of the plaintiff and his daughter in relation to the location where the accident occurred for the following reasons. I was impressed by the straightforward manner in which Ms Pelle gave evidence. She appeared to have a reasonable recollection of the location where she found her father even though she had not been asked to recall the location since the accident. While, for the reasons described later, I had considerable reservations about the plaintiff’s evidence both generally and in circumstances where he had just been hit by a car, it was corroborated by Ms Pelle. The first defendant was not a particularly impressive witness although he appeared to be giving evidence unaffected by the fact that he was a defendant. He gave evidence of waiting for 20 to 30 seconds prior to making the right turn into Jandamarra Street which appeared to me to be unlikely. Further, had the accident occurred where the first defendant said it had then the accident itself was less explicable than if it had occurred at the intersection. If it occurred where the first defendant said it did, well down Jandamarra Street, there is no reason why the plaintiff would have been walking on the road rather than on the immediately adjacent footpath which ran down the southern side of Jandamarra Street. Further, the first defendant, even if not paying proper attention, would have been more likely to have seen the plaintiff having regard to the fact that he would have been travelling slowly in a straight line with his headlights pointed directly toward the location of the plaintiff rather than being in mid-turn at the intersection. I do not consider the presence or absence of the plaintiff’s beanie and umbrella to be significant in the resolution of the question of where the accident occurred. I preferred the first defendant’s evidence that he did not reverse back to where the plaintiff was lying to that of the plaintiff who said that he did. It appears to me that in the circumstances where he had just been run down by a large four-wheel drive the plaintiff’s apparently clear recollection of this is unlikely to be reliable. The suggestion that the first defendant reversed back towards the plaintiff was not mentioned in the statement that the plaintiff made to the Australian Federal Police in 2013. Further, it appears to me to be more likely that the first defendant, having suddenly realised that he had struck a pedestrian, would have simply stopped the vehicle and got out rather than reverse down the road in circumstances where that might cause further harm to the pedestrian.
As a consequence I find that the accident occurred substantially in the manner described by the plaintiff as he attempted to cross at the T intersection between Jandamarra Street and Wanganeen Avenue rather than at some point further down Jandamarra Street.
Notwithstanding that I have not accepted the first defendant’s evidence in relation to the location of the accident, I do accept that he stopped before turning right into Jandamarra Street. I consider that to be more likely than the alternative that he turned into Jandamarra Street without stopping prior to the turn. In my view, had he simply swung round the corner then he would have been travelling at a higher speed and the likely injuries to the plaintiff would have been greater than they were. Because I have accepted that he did stop prior to turning into Jandamarra Street I also find that the reason for that was because of an oncoming vehicle although I do not accept that he was waiting for 20 or more seconds prior to making the turn.
Therefore in summary the facts that I have found are that the plaintiff was attempting to walk across Jandamarra Street at the point of the intersection so as to connect up with the continuation of the footpath on the other side. The first defendant, after having stopped his vehicle on Wanganeen Avenue to permit another vehicle to pass, made a right-hand turn and hit the plaintiff at a relatively low speed knocking him down onto the adjoining footpath.
Assessment of the plaintiff’s evidence
I had the benefit of observing the plaintiff giving evidence in chief and being cross-examined over a four day period. On contested issues of fact where his evidence was not corroborated I considered that I should treat it with caution because of a tendency to give emphatic evidence that was supportive of his claim in circumstances where the true picture was more complicated. This is consistent with the report dated 4 April 2014 of Greg Aldridge, a clinical psychologist engaged by the solicitors for the plaintiff, which included the following assessment of the plaintiff:
Mr Pangallo conveyed a sense of both anger about inadequate compensation and an entitlement to compensation. He tended to overemphasise matters that supported his claim and minimise that which did not support his claim. This did not seem to be conscious but just how he saw the matter.
Two aspects of the evidence illustrate that on issues significant to the assessment of damages his evidence needed to be treated with care:
(a)The evidence disclosed that his circumstances were not as good as he portrayed them prior to the accident and hence illustrated an over emphasis upon the significance of this accident for his overall well-being. That conclusion was consistent with the medicolegal report of the clinical psychologist Mr Aldridge quoted above. It was also consistent with the medical records of Dr Jacob Foo, his general practitioner, quoted below (in particular the entry relating to the consultation on 13 September 2011) which illustrated his complaints of chronic ill health, back and knee pain in the year prior to the accident.
(b)Similarly, in relation to his future work intentions he had, for the purposes of this case, asserted a specific intention to return to paid work by the establishment of a “gardening and general maintenance, minor electrical, minor plumbing business” at some stage after he had completed his maintenance work on a 100 acre property at Bywong owned by his wife. However the documentary material put to him in cross-examination demonstrated that he had expressly disavowed any intention to return to paid employment or contracting work substantially prior to the accident. Thus the evidence went from a clear intention to establish a small business to a clear intention not to establish such a business subject only to the possibility that at some undefined time in the future he might change his mind.
In assessing the weight to be given to his evidence I do not place any weight on the evidence concerning his involvement as plaintiff or defendant with claims arising out of motor vehicle accidents in December 1978 and February 1981. While the cross-examination could have elicited evidence that substantially affected his credibility and at least one of the accidents gave rise to some suspicion on the part of the third-party insurer at the time, the plaintiff denied any knowledge or involvement in any wrongdoing and the evidence was not sufficient to permit a finding that he was a knowing participant in any wrongdoing.
Finally I note that no corroborative evidence was led from any other person in relation to the overall effect of the accident having regard to his prior health or, specifically, in relation to his claim of causally related erectile dysfunction.
Contributory negligence
The defence filed by the first and second defendants pleaded contributory negligence. The particulars of contributory negligence were as follows:
(a) Failure to take proper care for his own safety;
(b)Failure to wear bright and/or reflective clothing in order to ensure he could be seen whilst walking in the dark;
(c)Failure to wear a flashing light to ensure that he could be seen whilst walking in the dark;
(d)Wearing earphones and listening to his radio whilst walking on the road and/or road related areas thus impacting upon his ability to hear approaching traffic;
(e) Failing to take proper care when crossing the road;
(f) Failing to remain vigilant when using roads and road related areas as a pedestrian.
Particular (c) was not pressed.
On the findings I have made then either at the point of departing the kerb or at some point during his passage across the road, a vehicle with headlights on drove past him travelling north along Wanganeen Avenue. Further, the first defendant’s vehicle also pulled up to a stop on Wanganeen Avenue waiting to turn right. The plaintiff denied any awareness of the presence of those vehicles. He was wearing earphones through which the radio was playing. While he gave evidence of an extensive examination of the surroundings at the point of departure from the kerb, volunteering in evidence in chief that he had “checked very thoroughly” and in cross-examination that he “looked at least two times left, right, left right again”, he gave no evidence that he continued to look out for vehicles during the course of crossing the road.
A pedestrian crossing a road at night even in a relatively low traffic suburban area is obliged to take reasonable care for the person’s own safety. That obligation extends to looking and listening for vehicles on the road that have the potential to cause harm to the pedestrian. It extends to cars approaching from both in front of and behind the pedestrian. It extends to circumstances in which the road is reasonably lit. It is clear that the plaintiff neither saw nor heard the first defendant’s vehicle prior to the accident. In my view had the plaintiff been taking reasonable care either by paying greater visual attention to his surroundings or by ensuring that his hearing was not impeded by earphones and the sounds of the radio then it is likely that he would have become aware of the presence of the first defendant’s vehicle and its approach as it turned into Jandamarra Street. It is more likely than not that having regard to his proximity to the edge of the road he would have been able to take some evasive measure in order to avoid the accident.
I do not consider that he failed to take reasonable care for himself because he was not wearing bright or reflective clothing. Had he been wearing such clothing then perhaps the extent of vigilance required of him might have been affected because he could proceed on the basis that an approaching vehicle would see that clothing. However not wearing such clothing was not a breach of duty.
Although there was some evidence of a hearing loss disclosed subsequent to the accident and the plaintiff admitted during cross-examination that he had had some difficulties with hearing on and off prior to the accident, the evidence was insufficient to disclose precisely what the effect of that hearing loss would have been in the circumstances in which the accident occurred. Therefore, in my view, it cannot be said that whatever hearing loss he might have suffered altered the extent to which he was obliged to be alert while completing the crossing of the road.
In my view, balancing the respective responsibilities of the parties for the accident, it is clear that the first defendant is very substantially responsible. The first defendant was driving a large motor vehicle, namely, a Toyota “LandCruiser” with a bull bar, on a road at night. He should have had a good view of the area surrounding the intersection as he approached it along Wanganeen Avenue. He was making a right-hand turn in circumstances where an oncoming car with its headlights on had just recently passed, potentially obscuring his vision of what was occurring on Jandamarra Street. He ought to have been aware of the possibility of a pedestrian being on the road and of being unable to see that pedestrian in the headlights during the course of his turn to the right. The plaintiff on the other hand had clearly managed to safely cross most of the intersection prior to any vehicle approaching. He was entitled to expect that even if a vehicle was approaching he would, at the point that he was on the road, be avoided by that vehicle if it was simply attempting to turn into Jandamarra Street. While his use of earphones and lack of continued attention to potential hazards did amount to a failure to take reasonable care it was not the principal cause of the accident. Bearing in mind that the question of apportionment is a matter of balance and relative emphasis weighing different considerations I assess the plaintiff’s contributory negligence at 20%.
The plaintiff’s circumstances prior to the accident
The plaintiff was born in 1948 in Italy and migrated with his family to Australia in 1955. He attended school in Canberra and Griffith and left school at the age of 15. He was employed from 1963 to 1967 in that part of the Commonwealth government administration responsible for maintaining parks and gardens in Canberra. Between 1967 and 2005 he was employed with the ACT Electricity Authority and later with ACTEW and then ActewAGL. He was initially employed as a lines assistant but by the time he was made redundant in 2005 had risen to a position equivalent to that of a foreman.
Following being made redundant he helped his son build a house in O’Connor. In August 2005 he started working for an electrical company doing “test and tag” work. He did that work for about 18 months. At about the same time he started receiving superannuation payments.
In February 2007 he took up attending “trash and treasure” markets in the ACT and surrounding areas. That is an activity which one of his brothers had been involved with for around 25 years. It involved selling second hand goods at those markets. The goods could either be surplus items of his own or items which he had bought at garage sales or auctions and then on sold, sometimes having been refurbished by him in between. He attended such markets about 40 times per year. Between March 2007 and December 2008 he worked for a company known as Fieldforce on a program that involved replacing light bulbs and shower heads with new and more efficient ones. He said he did not intend to retire at that age. After that contract concluded he continued to occupy himself with work including, at times, some reasonably heavy physical work on the 100 acre property at Bywong just outside Canberra where he stored items to be sold through the trash and treasure markets as well as gardening and general maintenance work at his home and holiday house at Batehaven. While he was active, he did not push himself too hard. In December 2010 he obtained some money from his superannuation fund based on a declaration that he had permanently ceased employment and did not intend to be employed again.
He described his medical conditions prior to the accident to Dr Leon Le Leu, an occupational physician, as including:
(a)headaches and facial soreness which he would resolve by doing exercise;
(b)no neck symptoms that he would worry about;
(c)no shoulder or arm problems;
(d)lower back problems in the sacral area rather than two thirds of the way down his back;
(e)no problems with his hips, knees or ankles.
Prior to the accident the plaintiff had suffered a series of other incidents during his life. He had eight previous motor vehicle accidents. He had ten incidents at work that led to claims for or payments of workers’ compensation. The most serious of those were:
(a)an incident in October 1971 when an electricity pole fell down when he was at the top of it;
(b)two incidents in May 1973 when wooden ladders were dropped on his back.
The plaintiff’s medical history prior to the accident was also substantial.
(a)He had a long history of back and neck pain, originally dating from his injury in 1970 when he came down with the falling pole and then again after a motor vehicle accident in December 1978. In 1984 he appears to have been off work after a motor vehicle accident between June and October “to allow recovery of his degenerative arthritic problems of cervical and lumbar spine and additional problems of gout in the right foot”. By August 1985 it was under control and his “disabled lumbar spine and left sided sciatica [was] bearable”. In 1987 he was referred for specialist consultation in relation to the “aggravation and exacerbation of long standing lumbar and sciatic complaints related to a motor vehicle accident on the way to work February 6 1984”. In September 1987 he had completed therapy through a pain management clinic and made use at home of a TENS machine in addition to completing a course of laser therapy for his recent exacerbation of lumbar and sciatic disability. In August 1988 he received specialist treatment as a result of an aggravation of back and left sided sciatic pain as a result of a motor vehicle accident during working hours on 9 July 1988. He continued to suffer from intermittent back pain, including complaints to his general practitioner recorded in 1997, which was not associated with any particular injury.
(b)He had a long history of elevated blood pressure dating from at least 1978.
(c)He was diagnosed with gout in a big toe in 1984 and subsequently had episodes of gout in his right knee which was controlled with medicine.
(d)In 1993 he received specialist treatment in relation to urinary problems that he was having which were diagnosed as a presumed case of prostatitis although the cause was not clear. In 1998 he had a colonoscopy to investigate possible causes.
(e)He had a long history of perianal problems having surgery in 1993 and further specialist treatment from 1994 to 1996 and again in 2002 and 2006.
(f)Between 1994 and 1998 he received treatment on a number of occasions for otitis externa.
(g)He appears to have been diagnosed with asthma in 2002 and was prescribed medication.
(h)He was diagnosed with sleep apnoea in 2002. He started using a CPAP machine in 2010.
(i)He suffered from kidney stones for which he was treated in 2009 and 2010, including an admission to the Prince of Wales Hospital for day surgery in 2010.
(j)He was diagnosed with a cataract in his left eye in March 2011.
(k)In 1989 he was diagnosed with carpal tunnel syndrome although this was effectively controlled by June 1991. He is recorded as having suffered an aggravation of this condition again in 1994, 1996 and 1997.
(l)In March 1993 he suffered a torn left ankle ligament and although a total recovery was expected he suffered symptoms in his left ankle again in June 1994. He suffered from pain and swelling in his left ankle in 2001 and was referred for x-rays.
(m)In 1999 a worker whom the plaintiff was responsible for supervising was electrocuted and died. The plaintiff was diagnosed with anxiety, depressive disorder and post-traumatic stress disorder during the period September 1999 through to 25 May 2001 and was certified unfit for work during most of that period. He was off work completely for at least ten months during this period. He then participated in a graduated return to work. His work duties were confined after that date and he never returned to normal duties prior to being made redundant.
(n)In 2001 he complained of pain in his right knee and a loss of full range of movement. The x-ray of his right knee showed some degeneration in the knee.
There are also some important records in the notes of his general practitioner, Dr Foo, relating to the year prior to the accident.
(a)On 22 July 2010 he attended his general practitioner and reported feeling “awful” and suffering from myalgia for about two weeks. He complained of a sore upper back.
(b)In October 2010 he reported a recent worsening of his asthma and right knee pain which was treated with a cortisone injection.
(c)In January 2011 he attended his doctor reporting back pain in the form of a right sided flank pain which was not new and a right hip pain which he experienced after lifting something heavy. He was advised to increase his Panadol Osteo to six tablets per day from the two to four per day that he had been taking.
(d)In April 2011 he attended his doctor reporting facial numbness on the left side of his lips and face and also some numbness in his left arm.
(e)Most significantly on 13 September 2011, one week prior to the accident, he described to his general practitioner a series of complaints consistent with chronic ill health. The doctor’s record of that consultation is as follows:
for last 10 years not one week goes by without him getting sick .. headaches comes and goes .. [occasional] runny nose .. sore eyes .. tiredness .. trembling shivering feeling .. [occasionally] head feels cold but [occasionally] feels hot .. lethargic and lacking energy .. [occasional] shortness of breath requiring him to take deep breath, but able to walk and cycle .. [occasionally] feels crook after exercise .. back always cold .. voltaren can also sap his energy .. unable to drink cold water from fridge .. has problems with car air conditioning .. cops it really strong at least once a week .. feels tired after walking ..
denies depression .. sleeps well .. uses CPAP .. weight fluctuates but remains about the same .. glands nil, heart drnb, lungs clear, abdomen obese, LSK np, pedal pulses ok
discussed possible diagnoses .. ?connective tissue disease ??allergy ??chronic infection
These entries, particularly the last, are reliable contemporaneous records that illustrate that the plaintiff’s health, as he perceived it, was not good prior to the accident. In my view, having regard to my concerns about the reliability of the plaintiff’s evidence, the contemporaneous record made by his doctor prior to the accident and in circumstances unaffected by the potential for a claim arising from the accident is likely to be a more accurate statement as to the well-being of the plaintiff than the summary or impression obtained from the oral evidence that he gave.
The plaintiff’s circumstances after the accident
Immediately following the accident he was taken by ambulance to the Canberra Hospital. The records of the hospital indicate that he was complaining of:
(a)pain in the frontal region of his head (and a subsequent diagnosis of a left temporal haematoma);
(b)tenderness in the cervical and thoracic spine;
(c)pain in the lower back;
(d)pain in the left leg particularly in the pelvis/hip area;
(e)pain in the right knee;
(f)tenderness in the left tibia/fibula and left ankle.
A summary of the diagnosis made at the Canberra Hospital is provided in the report of Dr Hugh English, an orthopaedic surgeon, dated 7 March 2013 as follows:
He was diagnosed with:
1. Musculoligamentous sprain to the cervical spine;
2. Soft tissue injury left shoulder;
3. Soft tissue injury left ankle;
4. Soft tissue injury left side of face;
5.Significant injury left knee with undisplaced fracture posterolateral corner upper tibia and fracture posterior aspect of lateral femoral condyle with 2 mm displacement. Complete tear of the medial collateral anterior cruciate and posterior cruciate ligament tear of the posterior horn of medial meniscus;
6. Lateral meniscus tear right knee.
He did not undergo surgery and was treated with braces and crutches. He was discharged from hospital on 4 November 2011 six and a half weeks after the accident. He had a leg brace on his left leg for about a month. He was required to use a walking frame for about two weeks and after that he used walking sticks to assist him for some months before being able to wean himself off them so that he only uses them when walking on uneven ground.
He had extensive physiotherapy both in hospital and following discharge.
He was reviewed at the Fracture Clinic of the Canberra Hospital until the end of 2011.
In March 2012 he consulted with Dr Brendan Klar, an orthopaedic surgeon, and had an MRI scan of both knees. In April 2012 he underwent bilateral knee arthroscopies. By the time of his review by Dr Klar in June 2012 his weight was over 125 kg. He undertook hydrotherapy to strengthen his knees and neck exercises to lessen his headaches. Currently he does hydrotherapy twice a week.
In 2013 he was diagnosed with a heart condition. An angiogram was performed which found the distal right coronary artery chronically occluded. An attempt was made to insert a stent into his artery. This was unsuccessful and he has been treated with oral medication since then.
The plaintiff had a post-Cornwell claim against the Commonwealth in relation to superannuation (see Commonwealth v Cornwell (2007) 229 CLR 519) which led to him receiving a payment. In order to be able to pay the amount into his superannuation fund he needed to do a certain number of hours of paid work during a month and he arranged to do some light work for a supermarket located in Civic. That employment was not intended to and did not continue after the month.
In late 2014 he was having problems with his back because of a pinched nerve and consulted with Dr Justin Pik, a neurosurgeon, in November 2014. I will refer to Dr Pik’s report below but note that the plaintiff had been complaining to his general practitioner, Dr Foo, of numbness in his legs when standing or walking since March 2009.
In February 2014 he spent five days in hospital with cellulitis.
In March 2014 he had a hearing test which disclosed that he had “mild to moderately severe mixed hearing loss” in his left ear and “mild to moderate sensorineural hearing loss” in his right ear.
He has not engaged in paid employment. He has only attended trash and treasure markets on three occasions in 2012 or 2013 when he attended Cooma, Bywong and Crookwell trash and treasure markets. He occasionally uses a walking stick if he is required to walk on uneven ground. There was little evidence as to how he spends his time.
He currently takes Panadol Osteo three times a day, a total of six tablets, as well as Lyrica in the morning and afternoon.
He reported to Dr Le Leu:
(a)headaches and facial pain as well as ringing in his ears;
(b)headaches that could be kept in check using neck exercises;
(c)pain in the left and right shoulders;
(d)pain in the lower back;
(e)burning sensation in the lower back and buttocks and numbness in his legs;
(f)erectile dysfunction;
(g)pain in the left knee;
(h)pain in the right knee;
(i)pain in the left foot unrelated to the accident;
(j)pain in the left leg.
Medical evidence
The plaintiff relied upon:
(a)two reports of Dr Jacob Foo, the plaintiff’s general practitioner, dated 14 April 2013 and 15 October 2013;
(b)a report of Dr James Bodel, an orthopaedic surgeon, dated 18 September 2013;
(c)the report of Dr Leon Le Leu, an occupational physician, dated 19 May 2015.
A jointly commissioned report of Dr Edward Korbel, a urological surgeon, dated 16 June 2015 was also tendered by the plaintiff.
Dr Bodel and Dr Le Leu were cross-examined.
The defendants relied upon:
(a)various reports of Dr Brendan Klar, the plaintiff’s treating orthopaedic surgeon, from April and May 2012;
(b)two reports of Dr Hugh English, an orthopaedic surgeon, dated 22 January 2013 and 7 March 2013;
(c)a report of Dr Geoffrey Stubbs, an orthopaedic surgeon, dated 6 August 2014;
(d)a report of Dr Virginia Pascall, an occupational physician, dated 11 October 2014.
None of these doctors was required for cross-examination.
There were also other reports among the thousand or so other pages of medical reports tendered in the case, including a medicolegal report of Mr Aldridge which I have quoted above which was prepared for the plaintiff’s solicitors and dated 4 April 2014 but tendered by the defendants without objection.
The differences in the diagnoses of the various specialist medicolegal experts, apart from Dr Korbel, are summarised as follows.
Dr Bodel Dr Le Leu Dr English Dr Stubbs Dr Pascall Head Closed head injury Neuropathic pain and numbness in the left side of the face and left temple area Soft tissue injury left side of face (Sensory changes to the face predate the motor vehicle accident) Left Shoulder Possible impingement syndrome left shoulder but not able to make the diagnosis without imaging Soft tissue injury left shoulder Neck and Back Soft tissue injury to the neck and back aggravating some underlying, clinically evident degenerative disc disease Exacerbation of pre-existing degeneration of the cervical spine
Exacerbation of pre-existing degeneration of the lumbar spine
Probable referred pain from back in both hips
Musculoligamentous sprain into the cervical spine Temporary aggravation of a pre-existing condition Left Knee
Multiple ligamentous injury to the left knee with a fracture of the lateral tibial plateau
Meniscal tear in the left knee
Complex injuries to both knees with more complex being on the left side resulting in multiple abnormalities
See above
Significant injury left knee with undisplaced fracture posterior lateral corner upper tibia and fracture posterior aspect of lateral femoral condyle with 2 mm displacement
Complete tear of the medial collateral anterior cruciate and posterior cruciate ligament tear of the posterior horn of medial meniscus
Double cruciate ligament injury
Degenerative changes in both knees accelerated on the left side by fractures and damage to the internal structures of the knee
See above
Right Knee Meniscal tear in the right knee See above Lateral meniscal tear right knee Aggravation of underlying degenerative changes that were already in evidence in the knee Left Ankle Soft tissue lateral ligament injury to the left ankle Probable ligamentous injury to the left ankle and a exacerbation of pre-existing injury Soft tissue injury left ankle Other Generally stiff joints
The report of Dr Foo recorded the plaintiff’s complaints of pain and disability, the treatment provided by Dr Foo and others and the reported restrictions on the plaintiff’s life. He recorded that the plaintiff was likely to have some long-term symptoms and that he would require surgery on his knees in the future.
Although not addressed in any of the expert reports served by the parties, the plaintiff was reviewed by a neurosurgeon, Dr Pik, in October 2014 because of numbness in his legs when he walked for more than a few hundred metres. Dr Pik’s opinion was that the plaintiff suffered from “neurogenic claudication due to spinal canal stenosis” which was “due to a combination of congenital stenosis, epidural lipomatosis as well as degenerative canal stenosis”. He recommended bringing the plaintiff’s morbid obesity under control as the first treatment. The nature of neurogenic claudication due to spinal canal stenosis was further explained in the oral evidence of Dr Bodel. He said that the congenital stenosis usually degenerates because of the degenerative process which is happening to the discs and the facet joints in that area making the congenitally narrow canal even narrower. The evidence did not indicate that the stenosis and the symptoms in the form of numbness and the inability to walk distances were caused by the accident in 2011. Even though it was a significant impediment to the plaintiff which appears to have been evident at least since 2009.
I accept the evidence of Dr Bodel who was cross-examined. He struck me as a careful and accurate witness and his report clearly explained the basis for his opinions. His report was consistent with the view of Dr English and generally consistent with the view of Dr Le Leu subject to some differences in focus having regard to the doctors’ specialisations. However, while I accept that the plaintiff did suffer some injury to his head, I do not accept that the ongoing complaints of numbness on the left side of his face are attributable to the accident having regard to his complaint of that condition in April 2011 shortly before the accident. Having regard to the caution with which I must treat his evidence I cannot be satisfied on the balance of probabilities that the ongoing facial pain is different or worse than the facial pain suffered prior to the accident. Although there was a high degree of consistency among the medical reports, to the extent that there is a difference in emphasis as to the causation of the injury to the right knee and the existence of injuries to the left shoulder and left ankle, I prefer the evidence of Dr Bodel, Dr Le Leu and Dr English to that of Dr Stubbs and Dr Pascall, as their reports were largely consistent with each other and appropriately reflect the contemporaneous complaints at the time of the accident and the existence of an injury to the right knee. All the doctors appeared to recognise the injury to the left knee as being the most significant disability suffered by the plaintiff clearly caused by the accident.
Therefore as a result of the accident:
(a)the plaintiff suffered short-term injuries to his head, face and left ankle;
(b)the plaintiff continues to suffer some additional headaches which may be managed using pain relief medication and exercise;
(c)having regard to his history of back pain I am satisfied that the plaintiff suffered an aggravation of that back pain;
(d)I am not satisfied that the plaintiff suffers ongoing disability in his left shoulder caused by the accident;
(e)the plaintiff suffered a significant injury to his left knee and a lesser injury to his right knee.
The most significant ongoing injury is that to his left knee. That will lead to the requirement that he have a knee replacement of the left knee most likely between 2018 and 2020. He is unlikely to need a knee replacement of the right knee. Having regard to his age he is not likely to require a second knee replacement in his left knee.
The jointly commissioned report of Dr Korbel assesses the plaintiff’s erectile dysfunction. Dr Korbel considered that the plaintiff’s erectile dysfunction related to several factors:
(a)his age;
(b)his weight gain of 30 kg;
(c)his medication which may affect his erectile capacity in particular Tramadol and Lyrica;
(d)his psychological problems which could be contributing to this problem.
Insofar as the weight gain of 30 kg was relied upon the doctor appears to have recorded the plaintiff’s weight as 130 kg and to have relied upon the plaintiff’s report that “he has put on some 30 kg since the accident”. The defendants took issue with the proposition that the plaintiff had put on 30 kg since the accident pointing to records that indicated that the plaintiff had weighed at least 120 kg in the period prior to the accident, namely:
(a)a report of Dr Raymond Mullins, a consultant physician, dated 29 August 2002 which indicated that the plaintiff reported his own weight at “around 115 kg”;
(b)a report of the Department of Thoracic Medicine at the Canberra Hospital dated 5 September 2002 which recorded a weight of 120 kg;
(c)a report of Dr Stewart May, a thoracic physician, dated 15 October 2002 which recorded his weight at 120 kg;
(d)a report of Dr James Lim, a consultant surgeon, dated 19 June 2006 which recorded his weight at 120 kg;
(e)a diagnostic report of Sleep Services Australia dated 13 September 2010 which recorded his weight as 120 kg;
(f)a report of Dr Christopher Allada, an interventional cardiologist, dated 13 August 2013 which recorded the plaintiff’s weight as 125 kg;
(g)a report of Dr Le Leu dated 19 May 2015 which recorded the plaintiff’s weight as 125kg.
The plaintiff’s oral evidence was that in the months prior to the accident he weighed “[a]pproximately 110 kilos”. Having regard to the records referred to above I do not accept that this statement is accurate.
Dr Foo’s notes of a consultation on 3 June 2015 record:
had [erectile dysfunction] .. worse since accident .. while in hospital, he had to wear braces which irritated the testes .. solicitor has made appointment for him to see Dr Chan for opinion .. advised
The plaintiff was cross-examined about the reference to his erectile dysfunction being worse since the accident so as to suggest to him that he had suffered from that condition to some extent prior to the accident. He denied that. However having regard to:
(a)the caution with which I consider I must treat the evidence of the plaintiff and the absence of any corroboration of a clear temporal coincidence between the loss of erectile function and the accident;
(b)the absence of evidence that a particular medication that he is taking because of the accident is in fact causally related to his erectile dysfunction;
(c)the fact that the plaintiff has not made good the proposition that he has increased in weight by 30 kg by reason of the accident;
(d)the fact that even on the basis of his assumption about the plaintiff’s increase in weight Dr Korbel does not attribute his erectile dysfunction to the accident;
I consider that the plaintiff has not discharged the onus of proving that the erectile dysfunction which he now suffers is due to the accident either by some direct cause or by some indirect means such as through his increase in weight.
General damages
The plaintiff suffered a significant injury to his left knee as a result of the accident. He also suffered less significant injuries to his cervical and lumbar spine, left shoulder, left ankle, the left side of his face and right knee.
The evidence in Dr Foo’s notes indicates that the plaintiff’s medical complaints had a significant effect on his quality of life prior to the accident. He had a long history of medical treatment for a variety of problems which were significant enough to require substantial time off work. After ceasing employment in 2008, notwithstanding his various medical conditions, he remained able to do physical work at the Bywong and Batehaven properties but by the time of the accident he had decided not to remain in the workforce. That was, of course, subject to the possibility that he might change his mind but that was only a small possibility.
Based on the evidence of Dr Bodel, the injury to his left knee is likely to result in the need for a knee replacement within five to seven years of the consultation in 2013. That knee replacement is likely to be effective for a period of 15 years. He is unlikely to need a knee replacement in his right knee. Therefore the likelihood is that during the balance of his life he will need a single knee replacement in his left knee. The injury to his left knee causes pain and makes mobility more difficult however the restrictions on his ability to walk which result from neurogenic claudication are not caused by the accident. Thus the impact upon his ability to control his weight, to participate in trash and treasure markets, to work on his properties and to undertake recreational activities would have occurred at least in part in any event.
In my view an appropriate award of general damages is $150,000 with $80,000 of that referable to the past. This gives interest at rates prescribed by the Court Procedures Rules 2006 (ACT) (Rules) of $10,967. Notwithstanding his age and his other ailments the significant component of the award referable to the future is contributed to by the requirement to undergo a left knee replacement at the point where pain and disability from that knee make it necessary.
Economic loss
The plaintiff’s income disclosed by his tax returns is as follows:
Gross income Net income 2006/2007 $68,933 $47,275 2007/2008 $72,581 $51,370 2008/2009 $44,711 $31,711 2009/2010 $12,034 $11,894 2010/2011 $12,815 $12,740 2011/2012 $12,756 $12,696 2012/2013 $13,057 $12,977 2013/2014 $14,327 $14,327
The most significant point for present purposes is that in the period immediately prior to the accident, namely the years ending 30 June 2010 and 30 June 2011, the plaintiff’s income was disclosed as almost entirely derived from “Australian annuities and superannuation income streams”. That income is unaffected by any injury or disability that the plaintiff has acquired as a result of the accident.
Prior to the accident he attended trash and treasure markets about 40 times per year. While there was some evidence that the plaintiff attempted to make a profit on his sales and that he would generally attempt to double his money having regard to the price for which he purchased items, there was no evidence to establish how much money he did in fact make during the period when he was regularly attending trash and treasure markets. He did not disclose any income from this activity to the Commissioner of Taxation as he was operating on the understanding that it was undertaken as a hobby and did not need to be disclosed. Given the evidence that he did in fact participate in trash and treasure markets on a regular basis but the absence of evidence as to his level of profit achieved by those activities, I will award the minimum figure contended for by the defendants for past economic loss, namely a buffer of $10,000 inclusive of interest.
As pointed out above he gave evidence that he had intended to establish a “gardening and general maintenance, minor electrical, minor plumbing business” at some stage after he had completed his maintenance work at the Bywong property. He did not give any evidence about the income that might have been derived from such a source. Counsel for the plaintiff pointed to statements that he had made to medical experts (Mr Aldridge and Dr Pascall) that he intended to earn $15,000 to $20,000 or more from such an activity. Counsel submitted that these statements to the doctors could be relied upon as evidence of the fact by reason of s 60 of the Evidence Act 2011 (ACT) (Evidence Act). His submission is correct. Section 60 of the Evidence Act has the effect that a history taken by a doctor and recorded in a medical report is evidence of the facts so recorded: R v Welsh (1996) 90 A Crim R 364 at 369; Eastman v The Queen (1997) 76 FCR 9 at 78-9; Quick v Stoland Pty Ltd (1998) 87 FCR 371 at 377-8, 382; Lee v The Queen (1998) 195 CLR 594 at 603-4 [39]-[40]; Moran v Amoret Installations Pty Ltd [2000] NSWCA 106 at [6], [7], [23]; Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25 at [70]; Guthrie v Spence (2009) 78 NSWLR 225 at 237-238 [75]; Mulcahy v The Queen [2012] ACTCA 3 at [77]-[81]; Ceva Logistics (Australia) Pty Ltd v Redbro Investments Pty Ltd [2013] NSWCA 46 at [142]-[143]. As the Court of Appeal pointed out in Mulcahy at [81]: “Section 60 is an unsatisfactory section that has the potential to cause significant unfairness to the party against whom the evidence is tendered.” As a consequence it is important that a limitation under s 136 of the Evidence Act on the use to which such hearsay material can be put be sought if the facts recorded in the histories are controversial. No limitation under s 136 was sought in relation to any of the expert medical reports in the present case.
Notwithstanding that the statements to Mr Aldridge and Dr Pascall can be relied upon as evidence that is only one part of the evidence in the case. As pointed out above the documentary material in the case and the plaintiff’s ultimate position in cross-examination was that he had, in fact, prior to the accident decided that he had permanently ceased employment and did not intend to return to employment. He had no intention either to be an employee or to be a contractor. The manner in which he ultimately explained the situation in evidence was that right up until the accident he had no intention to return to work although he might have changed his mind. Because of the accident he no longer had that opportunity.
In my view the plaintiff has established that he has suffered a loss of earning capacity which will be productive of financial loss in relation to his participation in trash and treasure markets as well as the loss of a chance to resume paid work. However the damages that he has suffered as a result of those losses are modest.
As at the date of the accident he was 63 years old. In my view there was a chance that he would have made modest amounts from participation in trash and treasure markets. There is also the chance which I consider to be a reasonably low one of having earned some modest amounts as a subcontractor of some type. I think the prospect of him actually returning to any more formal paid employment would be remote. Given the uncertainties about what he would have done and the minimal evidence as to his capacity to make a profit from trash and treasure activities I consider that a buffer of $10,000 will be sufficient. That is the equivalent in current dollars of a 10% chance of earning $40,000 as a subcontractor and earning $6,000 as a profit on his trash and treasure activities.
Griffiths v Kerkemeyer
The plaintiff submitted that an award for Griffiths v Kerkemeyer damages for the past should be made as follows:
(a)20 September 2011 to 4 October 2011: 28 hours per week at $35 per hour;
(b)4 October 2011 to 1 November 2011: four hours per week at $35 per hour;
(c)1 November 2011 to the date of judgment: three hours per week at $35 per hour.
No evidence was led as to the commercial cost of such care. There was no indication that there was agreement as to the rate of $35 per hour for which the plaintiff contended.
During the period when the plaintiff was in hospital I am not satisfied that a need for care was created. He appears to have been accommodated in hospital and there is no evidence that any member of his family or anybody else was required to provide gratuitous assistance to him.
After he was released from hospital there was about a month or a little longer during which time he was not very mobile and “couldn’t make [himself] a sandwich” although he did persevere with washing and showering himself. His wife assisted him by taking him to and from medical appointments during that month. After a month he did not need help so often but he could not do domestic duties such as mopping the floor, sweeping outside, washing the dishes and helping his wife with making beds and vacuuming.
Having regard to the limited evidence as to his need for assistance following release from hospital in my view the claim for four hours per week for four weeks following his release from hospital is appropriate although because of the absence of evidence or agreement to support the rate claimed I will only award an amount for that assistance at $25 per hour. That gives a total of $400. I will award interest of $100.
In relation to the period after that there is no evidence that the plaintiff needed additional assistance. Any assistance which he provided to his wife will be dealt with under s 100 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act).
In relation to the future there is no evidence that he needs any particular assistance in the course of his daily life or that his wife or anybody else provides him with such assistance. It is however likely that he will need some assistance at the time of the knee replacement. I will allow a buffer equivalent to 150 hours of care at that time which gives an amount of $3,750.
Domestic services
The plaintiff claims $50,000 by way of a buffer for future loss of the capacity to perform domestic services, for care received after any future bilateral knee surgery and for the inability to perform work on his family home, farm and family coast house. The Griffiths v Kerkemeyer damages relating to future knee surgery are dealt with above. Insofar as this claim relates to a loss of capacity to perform domestic services it must be a claim under s 100 of the CLW Act. Section 100 of the CLW Act provides:
100 Damages for loss of capacity to perform domestic services
(1)A person’s liability for an injury suffered by someone else because of a wrong includes liability for damages for any resulting impairment or loss of the injured person’s capacity to perform domestic services that the injured person might reasonably have been expected to perform for his or her household if the injured person had not been injured.
(2)In an action for the recovery of damages mentioned in subsection (1), it does not matter—
(a)whether the injured person performed the domestic services for the benefit of
other members of the household or solely for his or her own benefit; or
(b) that the injured person was not paid to perform the services; or
(c)that the injured person has not been, and will not be, obliged to pay someone
else to perform the services; or
(d)that the services have been, or are likely to be, performed (gratuitously or
otherwise) by other people (whether members of the household or not).
(3) In this section:
wrong means an act or omission (whether or not an offence)—
(a) that gives rise to a liability in tort; or
(b)that amounts to a breach of a contractual duty of care that is concurrent and
coextensive with a duty of care in tort.
Domestic services are not defined either in the section or in the Dictionary to the CLW Act.
The history of the provision has been outlined to some extent in the decision in Becker v Queensland Investment Corporation [2009] ACTSC 134 at [201]-[205]. It was introduced following the report of the Community Law Reform Committee of the Australian Capital Territory Report No 4 Loss of Consortium, Loss of Capacity to do Housework (1991). It is notable that the provision was previously entitled “Damages for loss of capacity to do housework” and that reflected the focus of the Community Law Reform Committee report and the legislation which inserted the provision in 1991: see Explanatory Memorandum for the Law Reform (Miscellaneous Provisions) (Amendment) Bill 1991.
I am satisfied that the domestic assistance which the plaintiff referred to in his evidence, namely, mopping the floor, sweeping outside, washing the dishes and helping his wife with making beds and vacuuming, are activities which as a substantially retired man he did provide to members of his household and is now less able to do. Having regard to the vagueness of the evidence about precisely what the plaintiff did and can now no longer do and the plaintiff’s other conditions I will allow an amount of one hour per week since the accident and for the period of five years into the future. That gives $4,940 for the past (3.8 years at $25 per week). Interest on half that amount over the period since the accident at rates prescribed by the Rules is $677 and I will award that amount. For the future that gives a total amount of $6,065 ($25 per week x multiplier 242.6). I have not awarded longer than five years because of firstly the potential that his capacity might be improved following the anticipated knee replacement but also because of the prospect that he would, as a result of his age and condition, be unable to provide these services in any event for longer than five years.
The contention of the plaintiff appears to be that the work of constructing sheds and maintaining fences at the property outside Canberra and the painting, lawn mowing and general maintenance work that might have been undertaken at the Batehaven holiday house are within the scope of the section.
The evidence in relation to the Bywong property was that it is a property held in his wife’s name and that the plaintiff did some maintenance work on the fences, poured slabs in some of the sheds and had commenced the erection of a new shed but could not complete it because of the accident. In relation to the Batehaven property the evidence was that he arranged for someone else to mow the lawns and that he intended to undertake some painting work at the property. I will deal with the Batehaven property claim later under the heading out-of-pocket expenses.
I am not satisfied that the work at the Bywong property constitutes “domestic services that the [plaintiff] might reasonably have been expected to perform for his or her household”. The activities at the Bywong property are not domestic services provided to his household. Instead they appear to be work undertaken as a hobby by the plaintiff unrelated to his household. Further, the evidence does not disclose that the plaintiff will suffer any financial loss (whether within s 100 of the CLW Act or otherwise) as a result of an inability to undertake these activities. That is because there is no evidence that the property will be devalued as a result of these activities not being undertaken or that they are necessary for any reason such as the need to enclose or exclude stock from the property.
Out-of-pocket expenses
In relation to past out-of-pocket expenses the parties agreed on quantum as follows:
(a)$68,134.73 had been paid by the second defendant;
(b)an additional amount of $8,870.82 has been incurred but not paid by the defendants.
The plaintiff also claimed, and I will award, interest on the unpaid amount of out-of-pocket expenditure for the period since the accident of $1,216 (interest at rates prescribed by the Rules on $4,435.41 since 20 September 2011).
In relation to the future the plaintiff submitted that damages should be awarded for:
(a)general practitioner reviews six times per year (six visits at $70 per visit giving a weekly amount of $8.08);
(b)physiotherapy treatment five times a year (five visits at $80 per visit giving $7.69 per week);
(c)review by an orthopaedic surgeon once a year (one visit at $220 per visit giving $4.23 per week);
(d)further x-rays (a lump sum of $500);
(e)a gym programme including hydrotherapy ($1,500 per year giving $28.85 per week);
(f)pain relief medication ($1,000 per year giving $19.23 per week);
(g)a bilateral knee replacement ($30,000);
(h)medication for erectile dysfunction ($1,020 per year giving $19.62 per week);
(i)the cost of travel required to attend medical examinations or therapy (51,600 km at $0.75 per kilometre).
In my view paragraphs (a), (b), (c) and (d) are reasonable and the requirement for them made clear or able to be inferred from the evidence. In the absence of evidence of the cost of a gym programme including hydrotherapy I will only allow $20 per week. In the absence of evidence as to the cost of the plaintiff’s pain medication I will only allow an amount of $500 per year. As indicated elsewhere I am not satisfied that any amount should be awarded in relation to erectile dysfunction.
In relation to the cost of travel, there was no evidence relating to the cost of running the plaintiff’s vehicle although there was some evidence led of the distances from the plaintiff’s house to his general practitioner, to his surgeon and to his hydrotherapy. The distance to his hydrotherapy is about 50 km return. His evidence was that he attended that two days per week. That gives a distance of approximately 100 km per week or, adding an allowance for other medical attendances, 105 km. In the absence of any evidence about the size, age or cost of the vehicle which he is actually likely to be operating and having regard to the fact that he would be operating a vehicle in any event I will only adopt a rate of $0.15 per kilometre. This gives a rate of $15.75 per week. In summary this gives weekly costs as follows:
(a)general practitioner $8.08;
(b)physiotherapy treatment $7.69;
(c)review by an orthopaedic surgeon $4.23;
(d)a gym programme including hydrotherapy $20.00;
(e)pain relief medication $9.62;
(f)cost of travel $15.75.
This gives a total of $65.37 per week. I will award this amount for a period of eight years. The rationale for making an award for eight years rather than for the median life expectancy of 20.2 years is that:
(a) he is likely to have a knee replacement within five years and this, after post-operative rehabilitation, is likely to substantially improve the condition of his left knee; and
(b) in eight years he will be 74 years old and on the evidence I cannot be satisfied that any treatment that is required would not have been required in any event.
Discounted to present value on the plaintiff’s current life expectancy this gives $24,304 ($65.37 per week x multiplier 371.8). Although Dr Bodel thought that it was not probable that the plaintiff would require a right knee replacement I consider it appropriate to make an award which accommodates the chance of that occurring. Dr Le Leu estimated the cost of a bilateral knee replacement at under $30,000. I will make an award of $20,000 to cover the likelihood of the left knee replacement and the chance of a right knee replacement. In addition to that must be added the amount for x-rays namely $500.
The plaintiff also made a claim (described by the plaintiff as a Griffiths v Kerkemeyer claim) for expenses associated with maintenance of the property at Batehaven. This comprised the cost of arranging for mowing of the lawn as well as the cost of undertaking some painting work and repairs to a carport which would otherwise have been undertaken by the plaintiff. Properly characterised these claims appear not to be claims for Griffiths v Kerkemeyer damages or indeed claims under s 100 of the CLW Act but instead claims for future out-of-pocket expenses. The requirement for assistance with the lawn mowing at the property is a monetary expense which he is likely to incur. His evidence was that it costs $50 per mow. In relation to the Batehaven property he used to go down there and mow the lawn. Instead of doing the lawn mowing himself he pays somebody $50 to do it in summer once a week or once a fortnight and during winter once a month or once every six weeks depending on how the grass is growing. Having regard to the status of the property as a holiday home and the absence of other information about it I will allow for lawn mowing on average once per month at $50 per month for a period of five years. Having regard to the age of the plaintiff and his other health conditions I am not satisfied that such assistance would not have been required in any event after that period. Therefore the amount awarded is $2,797 ($11.53 per week x multiplier 242.6). The evidence as to the painting and other repair activities (painting, repair of a fascia and building a carport) was not specific enough to warrant any award of damages as I am not satisfied as to the amounts that would be incurred or that they would not have been incurred in any event.
Total future out-of-pocket expenses are therefore $47,601 ($24,304, $500, $20,000, $2,797).
Summary of damages
The damages that I have assessed are, in summary, as follows:
General damages $150,000 Interest on past component ($80,000) $10,967 Income loss – past (inclusive of interest) $10,000 Income loss – future $10,000 Griffiths v Kerkemeyer – past $400 Interest on past Griffiths v Kerkemeyer $100 Griffiths v Kerkemeyer – future $3,750 Domestic services – past $4,940 Interest on past domestic services $677 Domestic services – future $6,065 Out-of-pocket expenses – past $77,005 Interest on past out-of-pocket expenses $1,216 Out-of-pocket expenses – future $47,601 Subtotal $322,721 Less 20% for contributory negligence $64,544 Award of damages $258,177
Ruling on evidence
On the last day of the hearing I reserved my decision on the admissibility of documents which were marked for identification. Those documents fell into three categories:
(a)MFI C: Documents including a copy of the writ by which the plaintiff commenced proceedings for personal injury arising out of a motor vehicle accident on 3 December 1978 and an order entering judgment for the defendant with no order as to costs dated 17 December 1990.
(b)MFI J: A judgment of the ACT Supreme Court of 4 October 1985 relating to a claim by the plaintiff’s brother and sister-in-law in which there was a verdict for the defendant. The plaintiff was cross-examined with a view to eliciting evidence that he was aware of this judgment at the time when he was advised in relation to and did agree to judgment against him in the proceedings arising out of the accident on 3 December 1978 when another vehicle hit the rear of his vehicle.
(c)MFI D, E, F and G: Documents demonstrating the commencement and conclusion of four proceedings in this Court arising out of a motor vehicle accident that occurred on 21 February 1981 when the plaintiff’s vehicle hit another vehicle in the rear. The plaintiff was cross-examined about his recollection of this accident and it was suggested that he was dishonestly involved in the circumstances giving rise to that claim.
Counsel for the defendants, who tendered the documents, submitted that the test in s 103 of the Evidence Act was satisfied. He pointed to the decision in McMahon v John Fairfax Publications Pty Ltd (No 5) [2012] NSWSC 218 in which McCallum J held that s 103 was not limited to oral evidence adduced in cross-examination and hence extended to documents that were tendered at the time when cross-examination was occurring.
The 11th edition of Odgers, Uniform Evidence Law suggests at [1.3.7750] that the decision in McMahon should not be followed, essentially because the reference to “in cross-examination” would usually be understood to mean the answers given by the witness to questions and the scheme of pt 3.7 of the Evidence Act is to suggest that documentary material should be admitted, if at all, via s 106. That would have the effect of avoiding the admission of further credibility evidence where the witness has conceded in cross-examination the substance of the matter that bears on his or her credibility. The relationship between s 103 and s 106 does not appear to have been considered by McCallum J in McMahon. Notwithstanding the decision in McMahon, I accept the relationship between s 103 and s 106 as outlined in Odgers. In my view the reference to “evidence given by a witness in cross-examination” in the Evidence Act (“evidence adduced in cross-examination of a witness” in s 103 of the Evidence Act 1995 (Cth)) is better read as meaning oral evidence given in answers to questions rather than documentary material that happens to be tendered while the witness is under cross-examination. As a consequence it must in my view be admitted under s 106 rather than s 103. I accept that this imposes limitations on the capacity to challenge answers given on matters going only to credibility. In the present case, insofar as the substance of the evidence was put to the plaintiff he ultimately agreed to the facts suggested to him and counsel for the defendants accepted as much (T 398). The fact that the plaintiff did not accept the inference which was sought to be drawn from the circumstances disclosed in the evidence does not under s 106 render the documents admissible having regard to his acceptance of the facts proven by those documents when put to him in cross-examination.
In any event, even if the documents were admissible under s 106(1)(a) because an inference sought to be drawn from the documents was not accepted by the witness, leave would still be required under s 106(1)(b) because s 106(2) would not apply to evidence of the nature sought to be tendered. I would refuse leave having regard to the limited nature of the evidence established by the documents, the denials of the inference sought to be drawn relevant to the plaintiff’s credibility and the absence of other evidence that would undermine the plaintiff’s denial of that inference.
Finally, even if the documents had been admitted they would not have affected the reasons given above or my conclusions.
Orders
The orders of the Court are:
1. Judgment be entered for the plaintiff against the second defendant in the sum of $258,177.
2. The second defendant is to pay the plaintiff’s costs.
3. Order 2 does not take effect for 14 days from the date of these orders and if either party notifies my associate by email (copying in the other party) that the party wishes to be heard further in relation to costs does not take effect until further order of the Court.
| I certify that the preceding one hundred and two [102] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop. Associate: Date: 19 October 2015 |
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