Probert v Bassett

[1989] TASSC 125

Serial No B47/1989
List “B”

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Probert v Bassett [1989] TASSC 125; B47/1989

PARTIES:  PROBERT
  v
  BASSETT

FILE NO:  192/1987
DELIVERED ON:  8 November 1989
JUDGMENT OF:  Crawford J

Judgment Number:  B47/1989
Number of paragraphs:  

Serial No B47/1989
File No 192/1987

PROBERT v BASSETT

REASONS FOR JUDGMENT  CRAWFORD J

8 November 1989

1. The plaintiff has claimed damages for personal injuries received in a motor vehicle accident on the Murchison Highway at about 5.30pm on 7 July 1986. The defendant was driving a virtually unladen Mitsubishi truck in a northerly direction from Queenstown to Wynyard. It was dark and raining lightly, requiring the use of windscreen wipers. The defendant drove past the entrance to the road to the Que River mine on his right, at about which point the highway commenced a long and sweeping bend to the left through dense forest. On that bend and 200 metres north of the junction, he found a large tree had fallen across the highway. He was forced to stop. His was the first vehicle to arrive at the tree. It was lying at right angles to the highway and was up to, but no more than, one metre in thickness. Only its trunk was across the highway, the branches being off to the side.

1. The defendant stopped the truck on the western half of the bitumen approximately four metres from the tree.  He left the truck's headlights on when he stopped, but he is now unable to recall whether they were on high or low beam. For reasons I will later explain, I find that they were on high beam. He activated the hazard lights which effectively meant that both right and left indicators were flashing. Also on were the truck's width and tray lights. He had all these lights on for the particular purpose of warning traffic from behind of the presence on the highway of the truck and the tree. He got out and looked to see if there was some way of getting round the tree. A north bound car pulled up behind and he stood on the road next to his driver's door, talking to the driver of that vehicle.

1. Within five or ten minutes of the truck's arrival, another car driven by Mr Pettit, containing as passengers his wife and three children, came on the scene, also from the south. In matters of conflict between the evidence of Mr and Mrs Pettit I prefer Mr Pettit's recollection because he gave me a feeling of greater confidence in that regard. However the differences were not very material. Having stopped, Mr and Mrs Pettit got out of their car. Almost immediately Mr Pettit got back in because of the rain. Mrs Pettit was standing alongside the front passenger door about to get back in, when they heard the sound of the plaintiff's Torana car approaching from the north.

1. The plaintiff was travelling from Wynyard Airport to Queenstown at a speed of about 100 kilometres per hour or a little less as he drove down a decline into a dip, from which the highway proceeded slightly up hill and into what was, for him, the long sweeping right hand bend across which, unknown to him, the tree had fallen. If it had been daylight the tree would have been visible when he was at a distance of about 170 metres from it or possibly more. However because of the dark and because of the limited range of his headlights on the bend, I find that his estimate of 120 metres is probably correct as the distance at which his lights would in normal circumstances at night have disclosed the presence of the tree.

1. As the plaintiff reached the dip he became aware of the glow of vehicle lights ahead. Immediately before the lights themselves could be seen by him, he dipped his headlights and at about the same time he lifted his foot from the accelerator pedal, with the result that his speed gradually reduced to about 80 kilometres per hour as he approached the tree, but no slower than that.

1. The bottom of the truck's headlights were a few centimetres above the level of the tree. They came into the plaintiff's direct vision when he was about 170 to 180 metres from them. They were dazzling and he was forced to look at the left edge of the bitumen as a guide to steering, as opposed to the centre paint markings on the highway. He also observed the flashing light on the left front of the truck as he viewed it. He was sufficiently familiar with the highway, having travelled along it on about eight occasions, to know that he was approaching the turn off to the Que River mine, and he wrongly assumed that the driver of the vehicle he was approaching was intending to turn across his path into the mine road. As he continued to approach the truck he came to think that the other driver was waiting for him to pass before making the turn. But the truck's headlights, being on high beam, made it very difficult to see and so he proceeded with restricted vision and with his foot off the accelerator, steering by concentrating on the left edge of the highway.

1. In evidence the plaintiff said when he first saw the tree he was no more than two guide post lengths from it (on the evidence up to over 40 metres is suggested by this) and he expressed the distance as "maybe 20 or 30 metres". Later in evidence he said he presumed the distance was a guide post length. Taking into account that he did, according to the evidence of Mr Pettit, cause the brakes to "lock up" before the collision, and allowing for a reaction time, it would appear that he was at least 30 and possibly 40 metres from the tree when he first saw it. He remembers only that he "went for the brakes" but nothing else before the collision with the tree.

1. The plaintiff said that he thought that the truck's headlights were on high beam because they dazzled him. He did not say in a statement he made some eight to ten weeks after the accident that they had dazzled him and in fact that statement said, "I could not be positive if the other vehicle's lights were on high beam or not". But any suggestion that he may have subsequently invented such a claim was contradicted by the evidence of witnesses. Mrs Pettit said that the plaintiff told her a few minutes after the collision that he could not see and the lights had hindered his vision. Mr Pettit said the plaintiff told him that he could not see and that the lights had dazzled him. Police officer Schiwy, who attended at the scene of the accident, said that the plaintiff told him that the truck's lights were on high beam, and he was dazzled and could not see the tree. Mrs Pettit thought the lights were on high beam. Officer Schiwy gave evidence that over a year after the accident the defendant told him that he put his lights on high beam for the purpose of warning cars coming the other way. The defendant disputed this and maintained that he did not know whether they were on high or low beam. Without having to resolve what he told the officer, the other evidence satisfies me on the balance of probabilities that the lights were on high beam. His evidence revealed that he accepted that they may have been and also that it is likely that they were on high beam as he arrived at the tree.

1. If the defendant had acted in the way he did, but had left his headlights in the dipped position, he would not have been negligent. His intention was to warn vehicles coming from behind of the presence of the tree by remaining on the bitumen, displaying his hazard lights and lighting up the tree. But by leaving them on high beam he created a dangerous situation. The lights were above the level of the tree and their brightness dazzled the plaintiff thereby preventing him from seeing the tree until he was 30 or 40 metres from it. The defendant was negligent in what he did.

1. When the plaintiff became dazzled by the truck's lights he was at least 170 metres from the tree. He assumed that it was a four wheel drive vehicle or a truck, and that it was waiting for him to pass before turning to its right. He had little vision beyond about 30 or 40 metres but did not brake, choosing to continue with only slight deceleration. He next realised that contrary to his expectation the vehicle he was approaching was not going to turn to its right before he reached it. With limited vision and in wet conditions he continued on at no less than 80 kilometres per hour, still without braking. He knew that the vehicle ahead was stationary with its headlights on high beam but failed to take into account that this might have been an indication that a dangerous situation was ahead, out of his sight. If he had safely but firmly braked, thereby slowing his car's speed more, he may well have been able to stop in time and would at least have reduced the violence of the collision substantially. His major injury was to his left patella which struck the underside of the dashboard. His face also hit the windscreen. He was wearing a seat belt which, for a reason he did not explain, did not hold him firmly in his seat. If he had slowed his vehicle much more than he did his injuries would have been reduced and his fractured patella would probably not have resulted. By failing to brake he was negligent and thereby contributed to his own injuries. But between him and the defendant most of the blame for his injuries should be attributed to the negligence of the defendant in causing the plaintiff to be dazzled. I attribute the plaintiff's contribution for his injuries at 20% and his damages should be reduced accordingly.

1. The plaintiff saw his fractured patella protruding through his jeans. He was taken by ambulance to the hospital at Burnie, where a cut in his eyebrow was sutured. He was then taken to the Launceston General Hospital. As a result of his fractured patella a partial patellectomy was performed resulting in a loss of the bottom third of it. He was discharged from hospital eight days later with his leg in a full plaster. His facial injuries apparently recovered quickly, leaving a small visible scar between his eyes. He suffered temporary pain in his back and arms. Whilst in a full leg plaster he was obliged to use crutches and was considerably inconvenienced. On 13 August 1986 it was replaced by a limited motion leg brace until 8 October 1986. Shortly after that he went back to work as a police officer in the radio room until he returned to full duties on 2 January 1987. I accept generally his evidence of pain and discomfort while in hospital and thereafter.

1. His leg was gradually mobilised with exercise. This was assisted, until about December 1986, with physiotherapy which was at times painful and uncomfortable. It took about six months for him to walk properly and twelve months to run properly. He was able to return to playing district football in 1988, although he wears a brace around the knee to protect it from blows. His knee clicks when he bends it or when he straightens it after it has been bent through sitting in a car. It is not painful on such occasions but slightly uncomfortable. He has lost some of the sensation on one side of the knee. It is of a noticeably different shape and is scarred. His muscle bulk in the thigh has been reduced. He has lost about ten degrees of flexion of the left knee joint which prevents him from squatting with his buttock on his heel. Kneeling is uncomfortable unless it is on something soft. The knee swells a little with exercise and he finds it uncomfortable to run on other than a flat surface. The knee only aches when kneeling on a hard surface and occasionally on waking.

1. An orthopaedic surgeon, Mr Einoder, who was called by the plaintiff, reviewed him on 23 October 1989 and found that he had patellofemoral crepitus which was causing the clicking in the knee. This suggests a minor incongruity of the patella surface. An x–ray taken on 24 June 1988 revealed some lipping of the patella which is one of the first signs of osteoarthritis, which may well have been caused by the accident but not necessarily. If his symptoms become more severe to the extent that they are intolerable for him, an arthroscopic debridement might have to be carried out. Mr Einoder is of opinion that this will probably have to be done within the next five years. It could be expected to relieve his symptoms but not be otherwise beneficial. It might have to be repeated later in life. At current rates the hospital and medical costs of such an operation total about $1,770.00. It involves hospitalisation for a day and unfitness for work for about ten days.

1. It is the belief of Mr Einoder that there is a reasonable chance of a meniscectomy having to be carried out, but I did not understand him to express it as a probability. There are some signs, tenderness along the joint line and some noises, which suggest that the meniscus is irregular, probably because of a direct injury. The accident is the likely cause of this. A meniscectomy will be of similar cost to that of an arthroscopic debridement and involve a similar period off work. There is also a chance, but it is remote, that a total patellectomy will have to be carried out at a current cost of $3,870.00, involving a week in hospital and four or five months off work. He will be left with a disability of 15 to 20% in the leg if this procedure is performed. Currently his disability is approximately 5% of the leg.

1. The plaintiff said that over the last two years the condition of his knee has been fairly stable although it makes a lot more noise than it used to. He would be reluctant to undergo further surgery, but would do so if his pain and discomfort became intolerable for him.

1. The defendant called another orthopaedic surgeon, Mr Morgan. He considered it possible, but unlikely, that the plaintiff will require a debridement. He agreed with Mr Einoder that it is likely that the violence of the injury to the patella was sufficient to damage the articular cartilage between the patella and the femur. He also thought it likely that some osteoarthritis of the patellofemoral joint will gradually develop, but it will not necessarily worsen inexorably and endlessly. He was of opinion that the plaintiff does not have significant meniscal pathology and it is quite unlikely that he will develop symptoms sufficient to warrant a meniscectomy such as sharp pain, catching of knee movements and locking of the knee.

1. There is a direct conflict between the evidence of the surgeons. Mr Einoder believes that a debridement within five years is a probability, whereas Mr Morgan considers that a debridement is unlikely although possible. Both surgeons accepted that a second debridement later in life is also a possibility. Mr Einoder believed that there is a reasonable chance of a meniscectomy having to be carried out, although it is not a probability, but Mr Morgan considers it quite unlikely. Both of them would agree that a total patellectomy is a remote possibility. I find that I do not accept the evidence of either of the surgeons in preference to the other. Although they were cross–examined at some length, neither of them was seriously tested in relation to these aspects. The plaintiff carries the burden of proof and I am not satisfied on the balance of probability that Mr Einoder's opinion prevails. My finding is that the chances of a debridement having to be carried out are less than but close to evenly balanced, with a substantially less possibility of a second such procedure being necessary. A meniscectomy is a possibility but not a probability, and a total patellectomy is a remote possibility. Currently he has a disability of about 5% of the left leg. He is able to play football and to carry out most activities without pain or any substantial limitation. He is 26 years of age. It is likely that discomfort in his knee will worsen to some extent, but he will probably not have a serious disablement, although it is a possibility. He will suffer no loss of income in the future except as a direct result of hospitalisation and subsequent recovery from one or more of the possible operations. I assess damages as follows:

General Damages –

Pain, suffering and loss

of amenities of life, past

and future  $14,500.00

Cost of future treatment

and consequent loss of

earnings  $  2,600.00

Value of physiotherapy

treatment provided by the

plaintiff's father,

agreed at  $  1,600.00  $18,700.00

Loss of earnings following

the accident, agreed at  $  2,892.02

Special damages, agreed at  $  4,282.04

Total Damages  $25,874.06

Net damages after deduction

of 20% for contributory

negligence  $20,699.25

Less scheduled benefits paid by

the Motor Accidents Insurance

Board (see s27 of the Motor
Accidents (Liabilities and
Compensation) Act 1973)  $  4,282.04

Damages Awarded  $16,417.21

1. There will therefore be judgment for the plaintiff for      $16,417.21.