Paun v Kay No. DCCIV-99-850

PAUN V KAY
[2001] SADC 144
Judge Allan
Civil

The plaintiff claims against the defendant damages for injuries and loss sustained in a road accident which occurred on 19 July 1996. The accident occurred when a motor vehicle driven by the defendant collided with the plaintiff. Issues arise as to both liability and damages.
The accident the subject matter of the proceedings occurred at about 10:40pm in Tynte Street North Adelaide at a point east of the intersection of Tynte Street and O’Connell Street. The intersection is controlled by traffic lights. O’Connell Street runs in a north-south direction and Tynte Street in an east-west direction.
Immediately before the accident, the plaintiff was crossing Tynte Street on foot. He was walking in an approximate north-east direction, at an angle of about 45 degrees. He would have been partially turned away from vehicles travelling east along Tynte Street; the direction in which the defendant was travelling.
As he crossed Tynte Street, the plaintiff was carrying some roses. He had been selling flowers in restaurants and cafés in the area. At the time he set off to cross Tynte Street, he was heading for a Thai restaurant situated on the northern side of Tynte Street and some distance east of the intersection. He was wearing a dark leather jacket, a white shirt and dark trousers.
Constable Martin attended at the scene after the accident. I accept his evidence as to his observations and measurements. He endeavoured to fix the point of impact. In the area where the collision occurred, the width of Tynte Street was 24 paces. It was measured by Constable Martin who said one of his paces is equal to about .8 of a metre. On the northern carriageway of Tynte Street, he found some roses. I infer they were the roses the plaintiff was carrying before he was struck. Constable Martin said the roses were 45 paces from O’Connell Street. He could not say whether that was from the kerb alignment or the building alignment of O’Connell Street. He found a quantity of blood on the northern carriageway of Tynte Street about 18 paces east of the roses. He did not make any measurement of the distance of the roses and the blood from the northern kerb alignment of Tynte Street; nor from the southern kerb alignment for that matter. He said there was provision for angle parking on the northern side of Tynte Street in the area of where the collision occurred and that it extended about five paces onto the roadway. There were cars parked in that area at the time. That is the evidence of the defendant, and I accept it.
Constable Martin inspected the vehicle driven by the defendant at the scene of the accident. It was a 1988 Toyota Celica. He found an impact mark on the left side of the front windscreen “in the shape of a head indentation”.
Constable Martin deduced that the point of impact was in the area where he found the roses; the blood being where the plaintiff came to rest after the collision.
Constable Martin’s evidence is a reliable basis for findings of fact and I think he was correct in establishing the point of impact. It is a pity he did not measure the distance between the roses and the northern kerb alignment of Tynte Street, but, for reasons I will mention shortly, I think the point of impact was probably about seven or eight paces south of that kerb alignment.
Shortly before the accident, the defendant was stationary at the traffic lights on the western side of the intersection. The lights were red for traffic travelling east along Tynte Street. While she was stationary, she saw the plaintiff. He was in the middle of Tynte Street, east of the intersection; about two house blocks east. She is not sure if he was moving when she saw him. She did not see him again. She gave no reason for that. The first thing she knew was that her windscreen broke. She said there were cars parked on both sides of Tynte Street. She said she was in second gear, travelling at about 30-40 kilometres per hour when the windscreen broke. I accept the defendant’s evidence. She was quite candid.
I think it likely that, at the time the defendant first saw the plaintiff, he was moving; if not, he must have resumed moving shortly after the defendant saw him, because he had moved from the middle of the road before impact.
As I have mentioned, there were cars parked on the northern side of Tynte Street. Assuming the northern carriageway of Tynte Street was about 12 paces wide, the available space for vehicles to travel in that carriage way would have been about seven paces. I think it likely that the point of impact was seven to eight paces south of the northern kerb alignment of Tynte Street. I infer this from the damage to the windscreen of the car driven by the defendant and the observations and measurements made by Constable Martin. This means the plaintiff must have moved after the defendant saw him. He must have continued making his way across Tynte Street.
The plaintiff said that he was in the middle of the road, on the white line, when he heard the sound of the defendant’s car and saw it for the first time. He implied that he did not move thereafter before impact. I think he must be wrong about that: for the reasons I have given, I think the point of impact was in the area I have described.
Clearly, the defendant was negligent: she saw the plaintiff at any early stage and then, for some unexplained reason, did not see him again. She failed to keep a proper lookout; if she had, she would have continued to see him and, probably, would not have collided with him. The defendant says the plaintiff was guilty of contributory negligence.
The plaintiff commenced to cross Tynte Street at a point east of the building alignment of O’Connell Street. I am unable to say on the evidence how far that point was from the eastern kerb alignment of O’Connell Street. The only evidence I have on that topic is from the plaintiff, but I think his evidence is not reliable on that matter.
The plaintiff says he commenced to cross Tynte Street at a time when the traffic lights at the intersection were showing green for pedestrians and vehicles travelling north across the intersection, although he conceded that it was possible that the lights were flashing red or showing red for pedestrians. I am satisfied that the lights for north bound traffic were showing green at the time the plaintiff commenced to cross the road, but those lights must have changed to red while he was still crossing.
I accept the plaintiff’s evidence that he was crossing the road at an angle of about 45 degrees. It is true that he could have crossed at the lights at the intersection and made his way east along the northern footpath of Tynte Street to the restaurant which was his destination, but I am not prepared to say that the route he took, presumably in order to save himself walking further than required, was one which he was not entitled to take; but it was one that required him to be vigilant.
As the plaintiff crossed the southern carriageway of Tynte Street, he concentrated on any vehicles approaching from the east; from his right. As best I can tell on the evidence, he did not look to his left to see if there were any vehicles travelling east until he heard the approach of the defendant’s vehicle. He said he heard brakes screeching. I think he must be wrong about that, the indications being that the defendant did not apply the brakes before impact; but, whatever, he did not see the vehicle until immediately before impact. It was there to be seen; and, if he had been keeping a proper lookout, he would have seen it. He should have looked to his left as he neared the middle of the road and before proceeding across the northern carriageway of it; and, as I say, if he had, he would have seen the defendant’s vehicle; in which case, he could have allowed it to pass in front of him or cross the northern carriageway in sufficient time to allow it to pass behind him.
The plaintiff had consumed alcohol during the course of the day of the accident and, perhaps, in the evening of that day. At about 30 minutes after the accident, he had a blood alcohol level of .142 grams of alcohol per 100 millilitres of blood. I accept the evidence of Dr McCleave that, at the time of the accident, his blood alcohol level would have been between .135 and .161. I also accept the evidence of Dr McCleave that, as a result of the alcohol in his system, the plaintiff’s judgement and perceptions would have been impaired. I think it probably contributed to the plaintiff failing to keep a proper lookout as he crossed the road.
Mr Day, for the defendant, drew attention to the dark clothing worn by the plaintiff, making it more difficult, or less easy, so he said, for the driver of the vehicle to see him. The clothing did not present a problem for the defendant: she saw the plaintiff at an early time.
The plaintiff was guilty of contributory negligence in the way I have mentioned. In apportioning liability between the parties, I have concluded that the defendant should bear the major portion of responsibility for the accident. I think justice will be done between the parties if I ascribe 70% of liability for it to the defendant and 30% to the plaintiff; and I so find. I turn to the issue of damages.
The plaintiff was born on 14 October 1947, in Yugoslavia. He was educated to grade six standard. He left school at age 15. He then worked as a tradesman’s assistant in the plumbing industry. He came to Australia in 1972. By that time, he was married with two children. He obtained employment in Australia about two months after his arrival. He worked as a labourer doing concrete work for a few weeks. Thereafter, he worked as a labourer, press operator and forklift driver. His last job was at a glass factory. He hurt his lower back when he was lifting a pallet while working at that factory. It seems he went on to light duties and, then, his employment was terminated. He did not make a claim for compensation. He has not been in employment since. He received unemployment benefits for four or five years after his employment was terminated and then he received sickness benefits. He has remained on sickness benefits since. He has supplemented the benefits he has received by selling flowers in restaurants and cafés in Adelaide. In this way, he makes about $50 per week; and that is what he was doing the night of the accident. At the time of the accident, he had no intention of doing, or looking for, work other than the selling of flowers. He expected to remain on the pension.
The plaintiff has been a heavy drinker and smoker for some years. In March 1998, he told his general medical practitioner, Dr Sykala, that, at times, he was drinking a bottle of vodka a day.
The plaintiff now lives alone. He is divorced from his wife.
As a result of the accident, the plaintiff sustained a comminuted compound fracture of the left tibia and fibular, a fracture of the left ulnar mid-shaft, lacerations to his left leg and scalp and soft tissue puncture wounds to his right foot. Immediately after the accident, he was taken from the scene to the Royal Adelaide Hospital by ambulance. In the early hours of 20 July 1996, he underwent surgery for the open reduction and internal fixation of the compound fracture of the left tibia with a pin and an open reduction and internal fixation of the mid-shaft fracture of the left ulna with a plate and screws. The wound on the left leg was closed and, apparently, skin from his right thigh was applied to some of the denuded area. A below knee plaster was applied to support the leg.
On 21 July 1996, the plaintiff underwent further surgery for a skin graft to the wound on his left leg, tissue being taken from his abdomen for that purpose.
The plaintiff remained in the Royal Adelaide Hospital until 6 August 1996, when he was transferred to the Hampstead wards. He was discharged from those wards on 23 August 1996.
Initially, the plaintiff was ambulatory on crutches, eventually progressing to using a walking stick. He still uses the stick, particularly when walking on uneven ground. He goes without it when he feels safe.
The plaintiff underwent physiotherapy before and following his discharge from hospital, but, it seems, his treatment has largely consisted of monitoring his recovery. As best I can tell, he has had no treatment to his leg since April 1997. His injuries have not healed the way they might have, the healing process being adversely affected by his smoking. He has been strongly advised to stop smoking, but finds he is unable to do so. Nevertheless, the healing process has reached the stage where the pin could be removed from his leg. It seems unlikely there will be any further improvement in his condition.
The plaintiff’s injuries were severe and he has undergone considerable pain and suffering. The pain he experienced in hospital was particularly severe. Presently, he has constant pain to one degree or another in his leg. It varies with activity, but sometimes there is an increase in the pain for no apparent reason. It interferes with his sleep. It increases on prolonged standing and walking and walking on uneven ground. The pain is from below the knee to the ankle. He gets cramps in his leg in the same area. They seem to come on for no apparent reason. Sometimes, they occur during the night and he bathes the leg in hot water to obtain relief.
There is an ugly scar on the front of the plaintiff’s leg below the knee. It is the sight of the skin graft. It is bulky. It is about 10 centimetres wide and 20 centimetres long. There is an adherent split skin component at it’s upper end and a bulky skin and subcutaneous fat component in the lower two thirds.
The plate which was inserted in the plaintiff’s arm was removed about two and a half years ago. The arm is not as strong as it was before the accident. He avoids lifting heavy objects with it. He is afraid it will break again. There is a surgical scar on the medial aspect of the left forearm
The plaintiff has a scar on his right thigh measuring 13 centimetres by 14 centimetres. This was the donor side for the split skin graft which was used to temporarily cover the compound wound on his leg. He also has a scar on his abdomen, being the sight of the tissue taken for the graft to that wound. It is a long, irregular scar extending from above the umbilicus to the symphysis pubis. There is an associated area of numbness to the right of it.
Since the accident, the plaintiff gets headaches. They are on the left side of his head. They are worse in winter. As I have mentioned, he suffered lacerations of his scalp in the accident. He seems to think he had a “broken” head as a result of the accident, but there is no indication that is so. He takes Panadeine Forte and Asprin to relieve the pain.
The defendant has pleaded a “novus actus interveniens”; the intervening cause said to be a fall by the plaintiff at home on 7 January 1997. It is true that, on that date, the plaintiff, while embracing his wife, fell over, taking her with him. He had been drinking. It is also true that, following the fall, there was an increase in the pain in his leg. He was admitted to hospital. My impression of the evidence is, however, that the exacerbation of the plaintiff’s symptoms following the fall was temporary and that the condition of his leg, after a time, reverted to what it had been before the fall; that it was a temporary exacerbation. In any event, I am not satisfied that the fall was an intervening force which operated to produce the plaintiff’s present symptoms.
As I have already said, the plaintiff has not had any active treatment on his leg for some time. He sees Dr Sykala every now and then to get prescriptions for pain killers. The plaintiff complains of arthritis in his right wrist and pain in his back and chest, things which are not related to the accident. He takes pain killers for those symptoms. It is hard to know what portion of his medication and visits to his doctor relate to the injuries sustained in the accident. Dr Sykala sees the plaintiff about twice per year, usually for matters unrelated to the injuries sustained by him in the accident. Dr Sykala prescribes anti-inflammatory medication infrequently. He has only seen the plaintiff twice in the last three years for prescriptions.
As best I can tell, the plaintiff returned to selling flowers about two years after the accident. He resumed selling them on the same basis as he had before the accident; that is, on Friday and Saturday nights in the restaurants and cafés in and about Adelaide. In assessing his damages for past economic loss, I will take into account the possibility that, for whatever reason, not associated with the accident, and during that period of two years, the plaintiff would not have worked at selling flowers for the whole of that period.
At present, the plaintiff is fit only for light bench work where he can sit and stand as he wishes. He is not fit for work which would involve heavy lifting or prolonged standing or walking. How much of this incapacity is due to the injuries sustained in the accident and how much is due to his pre-existing back disability is hard to say. The plaintiff thinks he has less capacity for work now than before the accident. I think that is probably correct; but it is almost impossible to define; and then, of course, there is his pre-accident attitude to work in the future. So far as damages for future economic loss are concerned, I think the plaintiff is entitled to no more than a modest sum for the loss of a chance to do some light work.
So far as future treatment is concerned, there is a body of medical opinion to the effect that the pin in the plaintiff’s leg could be removed and the skin flap on the front of his left leg reduced. These two procedures could be done in a combined procedure at a present cost of $3,346.00. I doubt whether the plaintiff will undergo such surgery. It is clear he is not keen on doing so and, as best I can tell, there is no pressing medical reason for it to be done. I will include a modest sum for the possibility that he will undergo these procedures under the head of future medical expenses.
It is agreed that the defendant has paid special damages for the plaintiff to date to the extent of $29,493.55. It is also agreed that there is an amount of $571.85 outstanding by way of special damages.
The Wrongs Act multiplier for damages for non-economic loss is $1,520.00. I ascribe the number 20.
Doing the best I can on the material before me, I assess the plaintiff’s damages as follows:
Past economic loss  $    4,500.00
  Future economic loss  $    7,500.00
  Non-economic loss  $ 30,400.00
  Future medical expenses  $    2,000.00
  Special damages  $       571.85
Interest  $    1,000.00
Total  $ 45,971.85
This amount must be reduced by thirty per cent on account of the plaintiff’s contributory negligence. This produces a figure of $32,180.30. The defendant is entitled to a credit of thirty per cent of the special damages already paid by her on behalf of the plaintiff. This leaves a figure of $23,332.13. There will be judgment for the plaintiff in that sum.
I will hear the parties as to costs.

[2001] SADC 144

4 December 2001