Scofield v Gorman
[2006] WADC 93
•23 June 2006
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: SCOFIELD -v- GORMAN [2006] WADC 93
CORAM: SLEIGHT DCJ
HEARD: 27 MARCH 2006
DELIVERED : 23 JUNE 2006
FILE NO/S: CIV 2812 of 2002
BETWEEN: DAVID MICHAEL SCOFIELD
Plaintiff
AND
BONNIE-LEE GORMAN
Defendant
Catchwords:
Motor vehicle pulling out of driveway - Collision with plaintiff on motor cycle - Contributory negligence - Assessment of damages
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943
Result:
Judgment for the plaintiff in the sum of $342,958.45
Representation:
Counsel:
Plaintiff: Mr K J Bradford
Defendant: Mr J R Brooksby
Solicitors:
Plaintiff: Bradford & Co
Defendant: Greenland Brooksby
Case(s) referred to in judgment(s):
Bowen v Tutt (1990) A Torts Rep 81-043
Giorginis v Kastrati (1988) 49 SASR 371
Griffiths v Kerkemeyer (1977) 139 CLR 161
Hendrie v Ruski [2000] WASCA 249
Husher v Husher (1999) 197 CLR 138
March v Stramare (1991) 171 CLR 506
Motor Vehicle Insurance Trust v Wilson (1976) WAR 175
Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Richards v Mills (2003) WASCA 97
Villasevil v Pickering (2001) 24 WAR 167
Wynn v New South Wales Insurance Ministerial Corporation (1995) 70 ALJR 147
Case(s) also cited:
Bennett v Minister for Community Welfare (1952) 176 CLR 408
Brown & Anor v Churchill [2006] WASCA 17
Butler v Gray (1944) 46 WALR 91
Chappel v Hart (1998) 195 CLR 232
CSR v Eddy (2005) 80 ALJR 59
Dray v Collins (2006) WASCA 15
Fogarty v Creasey [2002] NSWCA 318
Henrick v Kubale [2001] WASCA 274
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Nesterczuk v Mortimore (1965) 115 CLR 140
Segal v Hanmer (1988) 7 MVR 56
The Chief Commissioner for Railways and Tramways (New South Wales) v Boylson (1915) 19 CLR 505
Tran v Government Insurance Office (NSW) (1994) 20 MVR 182
Van den Heuval v Tucker (2003) 85 SASR 512
Wylde v Arriaza, unreported; SCt of WA; Library No 970359; 23 July 1997
SLEIGHT DCJ: The plaintiff's claim in this matter is a claim for damages for personal injuries suffered in a motor vehicle accident on 4 March 2000.
The accident arose when a collision occurred between a motorcycle driven by the plaintiff in a southerly direction on Canning Highway in Como collided with a motor vehicle driven by the defendant. The defendant's vehicle had pulled out onto Canning Highway from a driveway of a residence situated on the east side of Canning Highway, and being the residential address of 422 Canning Highway.
Canning Highway consists of four lanes, two lanes travelling in each direction. The collision occurred in the centre lane for traffic travelling in a southerly direction.
The plaintiff's claim is based upon the alleged negligence of the defendant driving her vehicle onto Canning Highway into the path of the plaintiff's vehicle. The particulars of the alleged negligence are pleaded as follows:
1.Failed to heed the presence of the plaintiff's motorcycle on Canning Highway;
2.Failed to keep a proper lookout;
3.Drove without due care and attention;
4.Failed to brake, swerve, steer or otherwise attempt to avoid a collision with the plaintiff's motorcycle;
5.Drove her motor vehicle on to Canning Highway without paying sufficient or adequate attention for the presence of other vehicles, including the plaintiff's motorcycle.
The defendant denies liability pleading that the accident occurred due to the negligence of the plaintiff, or alternatively that the plaintiff was guilty of contributory negligence.
The main allegation of negligence against the plaintiff is that he was travelling at an excessive speed.
The particulars of the alleged negligence are pleaded as follows:
1.Proceeded along Canning Highway at an excessive speed;
2.Failed to look where he was going;
3.Failed to so heed or observe the presence of the defendant's motor vehicle and so caused the collision;
4.Failed to take any evasive action or alternatively;
5.Drove at such an excessive speed that it was impossible to take evasive action.
The plaintiff's evidence on liability
The plaintiff's evidence was that he was a regular user of Canning Highway. The speed limit along Canning Highway is 60 kilometres per hour. On the date of the accident he was riding a Yamaha 1000 CC motorcycle with a pillion passenger, travelling in Thelma Street, Como in a westerly direction. Thelma Street intersects with Canning Highway in Como.
He described how other vehicles heading south on Canning Highway proceeded through the intersection on a green light, and after this traffic had passed, he then entered Canning Highway turning left, going through a give‑way sign. The plaintiff described how he accelerated to pass the vehicles that had passed through the intersection ahead of him.
The plaintiff described that when he entered Canning Highway he moved to the centre lane. He passed one vehicle in the left lane. After passing this vehicle he then moved into the left lane and passed a vehicle in the centre lane on its left hand side. He then moved back into the centre lane and at this stage, there were no vehicles immediately in front of him.
He stated that to carry out these passing manoeuvres he accelerated up to about 80 kilometres per hour. However, once he was in front of the vehicles he then slowed down, and he estimates that he was probably doing about 65 kilometres per hour.
He stated that he then proceeded along a straight stretch of Canning Highway in the centre lane. He observed a green coloured vehicle come out ahead of him on the left hand side from Saunders Street (which intersects with Canning Highway). He stated that he was approximately half way between Saunders Street and a Gull service station in Canning Highway when he observed the vehicle pull out of Saunders Street (it was agreed between the parties that the distance between Saunders Street and the Gull service station was 200 metres). He was travelling faster than this vehicle and he passed it.
He stated that as he was passing this vehicle he observed the defendant's vehicle pull out of a driveway and stop in the middle of the centre lane.
The plaintiff said that he was about 30 metres from the defendant's vehicle when he first saw it.
He stated that he applied his brakes but it was clear to him that he could not stop in time to avoid a collision. He released the brakes in order to try to veer to avoid the collision but he was not able to veer to the right as he would go over to the incorrect side of the roadway and run the risk of colliding with oncoming vehicles. He decided that he would try to veer to the left, but he did not have time to do so and a collision occurred.
He stated that he collided near the rear wheel of the defendant's vehicle stationary in his lane.
He stated that on impact he and his pillion passenger were thrown over the handlebars of his motorcycle and over the roof of the defendant's vehicle. On landing on the ground they rolled on the surface of the roadway for a distance. He stated he came to rest outside 428 Canning Highway. He estimated that the pillion passenger came to rest about eight metres further down the highway.
He stated that after the collision with the defendant's vehicle his motorcycle continued on and impacted with a pedestrian/bicycle railing on the left hand side of the roadway. The motorcycle then continued on and came to rest outside 426 Canning Highway.
At the time of impact the plaintiff stated that he "would have been doing 65" (T33). He stated that he did not have a chance to slow down his motorcycle before the collision.
The plaintiff agreed under cross‑examination that he first saw the defendant's vehicle in the driveway at 422 Canning Highway when he was about 200 metres away from the driveway.
The plaintiff admitted that in sworn answers to interrogatories he had stated that he had first seen the defendant's vehicle when he was 15 metres from it. He stated that he had since been back to the scene of the accident and made some measurements. In light of these measurements he now believed that he was approximately 30 metres from the defendant's vehicle when he first saw it enter the roadway.
The plaintiff denied that immediately prior to the collision his motorcycle skidded, that it left a skid mark on the road, and that smoke was coming from his motorcycle. He also denied that his pillion passenger, seated on the rear of the motorcycle, was moving his hands in a motion similar to a jockey whipping a horse to encourage the plaintiff to go faster.
He stated that after impact the defendant's vehicle remained blocking the centre south bound lane. He stated the rear of the defendant's vehicle had moved about a metre in a southerly direction after impact.
The plaintiff also called as a witness Ms Tonya Catherine Turner. She was the driver of a vehicle travelling in a southerly direction in the left lane at the time of the accident.
She stated that she entered Canning Highway at Saunders Street.
She stated that when she entered Canning Highway she did not see any traffic in either direction.
She stated that as she proceeded along Canning Highway she did not see any other vehicles ahead of her.
She observed the defendant's vehicle coming out of a driveway on her left. She believed at that point of time her vehicle was about half way between the driveway and Saunders Street.
She observed the defendant's vehicle come out in front of her and then proceed to slow down, almost to a stop on the median strip. She believed the nose of the defendant's vehicle was in the centre lane for traffic travelling in the opposite direction. The rear of the defendant's vehicle was in the centre lane next to the lane she was travelling in.
She then heard a sound which grew louder. She said it was a very high pitched whine, and at first she thought it was a low flying aircraft. She then realised it was a vehicle. She looked into her right hand wing mirror and at that time a motorcycle came past her in the centre lane heading towards the rear of the defendant's vehicle. She concluded there was likely to be a collision.
Instinctively she applied her brakes even though she wasn't doing the speed limit. She believed it was a nervous reaction to the imminent collision.
Immediately before the collision she saw the motorcycle wobble and then collide with the rear panel on the driver's side of the defendant's vehicle. The occupants of the motorcycle, the rider and the pillion passenger, were flung further down Canning Highway. She stated that the motorcycle basically broke up into pieces, a piece of which she believed to be the petrol tank, very narrowly missing her windscreen.
She stated that when the two vehicles collided her vehicle was almost adjacent to the point of collision.
She did not believe the there was sufficient space between her vehicle and the defendant's vehicle for the plaintiff to veer left to avoid the collision.
Under cross‑examination she estimated that the motorcyclist finished up on the roadway about 100 metres from the point of collision, and the pillion passenger further still.
She believed that when she saw the motorcycle it was travelling very fast. She stated that she was "surprised and taken aback" by its speed (T111).
She described the impact as a terrific bang and the motorcycle disintegrated.
Her recollection was that the impact forced the defendant's motor vehicle into the north bound lanes of Canning Highway, but she could not recall whether the vehicle was spun around. Her recollection was that it was still facing the same direction as when the collision occurred.
The plaintiff also called as a witness, the pillion passenger, James Michael Farr. In my opinion he gave evidence in a most unsatisfactory way. At times he resisted answering questions put to him in cross‑examination. I formed the impression that he was biased towards the plaintiff and was not a reliable witness.
He described how the plaintiff's motorcycle had overtaken about four vehicles prior to reaching the Gull service station which is on the right hand side of Canning Highway [and which on the basis of measurements agreed by the parties is 281 metres from the point of collision]. He then described that the plaintiff's motorcycle proceeded along Canning Highway until the defendant's vehicle pulled out in front of the plaintiff's motor cycle, causing a collision. He stated that when the defendant's vehicle pulled out the plaintiff's motorcycle had not reached Saunders Street. When he first saw the defendant's vehicle it was edging out onto the roadway.
He stated that when the defendant's vehicle had pulled out fully onto Canning highway, the plaintiff's motorcycle was approximately 10 metres from defendant's vehicle.
He stated that when the vehicle pulled out, the plaintiff's motorcycle slowed down and braked.
He stated the defendant's vehicle suddenly stopped in the centre lane and that there was nowhere for the plaintiff's motorcycle to go to avoid the collision.
He claimed that at the point of impact the plaintiff was not speeding.
Under cross‑examination he stated that the motorcycle was doing about 70 to 80 kilometres per hour when it overtook vehicles prior to reaching the Gull service station.
He stated that he observed the defendant's vehicle coming out of the driveway at about the same time as he saw the vehicle coming out of Saunders Street.
He estimated that they were about 50 metres from Saunders Street when he observed a vehicle pulling out from Saunders Street.
He assumed that at that point in time they were travelling at about 60 kilometres per hour as the motorcycle had slowed down.
He stated that the defendant's vehicle was straddling both south‑bound lanes when the plaintiff's motorcycle hit it.
He did not believe the motorcycle skidded when it braked.
He stated the plaintiff slowed the motorcycle down at Saunders Street when the defendant's vehicle was first seen by Mr Farr, and then again just prior to the collision.
Later he said he was not sure if the plaintiff applied the brakes immediately prior to the collision. He admitted giving evidence in proceedings in the Court of Petty Sessions in March 2001 when he stated that he heard a skidding noise just before the collision which he was sure was from the motorcycle.
He denied sitting on the back of the bike whipping like a jockey riding a horse to encourage the plaintiff to go faster.
He denied saying when he went to hospital that the motorcycle was travelling at about 200 kilometres per hour.
The defendant's evidence on liability
The defendant, Mrs Gorman gave evidence. She stated that before manoeuvring her vehicle onto Canning Highway she stopped her vehicle with the nose of the vehicle slightly out on the roadway. She looked in both directions.
She described how the driveway slopes towards the road and as a result, as you accelerate to go out of the driveway, you need to hesitate slightly to prevent the rear of the vehicle banging on the driveway.
She said that as she drove across the highway, she observed her left was clear. She also looked to her right and saw a motorcycle zig zag between two vehicles approaching from her right. She continued making her turn estimating that the motorcycle would create no problem if it should continue normally.
Mrs Gorman stated that at the point of impact most of her vehicle would have been on the other side of the road with her rear wheel just on the centre line or just on the south bound lane, and with the rear panel behind the rear wheel in the south bound centre lane.
She stated that at the point of impact her vehicle was not facing 90 degrees across the highway but at right angles to the north, and after impact the vehicle had swung around facing almost back towards the driveway.
Under cross‑examination she stated she had clear visibility slightly beyond the Gull service station which is approximately 300 metres from the point of collision.
She stated that the rise in the roadway to her left impeded vision of north bound vehicles so that vehicles appeared very suddenly over the rise. As a result of this she agreed a prudent driver would probably pay closer attention to the left.
She stated that when traffic was busy she would always turn to the left when coming out of the driveway rather than proceed across the highway to turn right.
She denied she stopped, or would ever stop, in the middle of the road to make a last check of vehicles coming over the rise to the left.
She stated Ms Turner's vehicle had just entered Canning Highway from Saunders Street when she commenced to come out of the driveway.
She accepted that the closer Ms Turner's vehicle was to her, the greater it created a blind spot, obscuring a possible motorcyclist. She accepted that if Ms Turner was about 30 metres away at the time she pulled out, then her view of the motorcycle further down the roadway would be blocked.
She stated that when she first saw the motorcycle she thought he was travelling very, very fast.
She stated that when she first saw the plaintiff's motorcycle, Ms Turner's vehicle was approximately 50 metres from her.
She stated that after impact the plaintiff was airborne and disappeared out of sight over the rise in the road.
She recalled seeing the plaintiff's hand on the bike motion as if applying the brakes shortly before impact, but she did not recall if the motorcycle skidded.
She admitted that when she looked to the right prior to entering onto the roadway, the motorcyclist may have been blocked by Ms Turner's vehicle.
When asked why she could not see the motorcyclist earlier because visibility was more than 300 metres, she stated that "when turning on to a road, you do not concentrate on vehicles that are to the rear of any approaching vehicle, you only concentrate on the approaching vehicle which is closest to you and not those further back". (T190)
A Ms June Heather Perron was also called to give evidence for the defendant.
She stated she was driving a vehicle in the centre south bound lane in Canning Highway.
She heard a roaring noise and a motorcycle passed her on the left side, travelling very, very fast.
She said there was a vehicle in the left lane behind her.
She said she was quite scared due to the speed of the motorcyclist and her vehicle trembled as the motorcycle passed.
She stated that her impression of the accident was that the motorcyclist clipped a vehicle travelling in the same direction as her vehicle. She said she saw the motorcyclist brake.
Under cross‑examination she stated that at an earlier hearing in 2001 she stated there were two other vehicles ahead of her.
She admitted that she said that the motorcyclist passed between the two vehicles ahead of her and clipped the left side of the bumper on the right hand side of one of these vehicles as the motorcycle passed between the two.
The defendant also called Mr Rex Allan Raymond. Mr Raymond was visiting his mother at 428 Canning Highway, Como.
He stated he heard a loud noise and went outside. He observed a motorcycle in the south bound lane immediately outside the driveway of 428 Canning Highway. He observed a person further down the roadway in a southerly direction.
He later observed a broken tile on the pathway in his mother's house, and observed that the tiled roof of an awning of the house was damaged. He observed an engine part, which he thought was an oil pump, lying on the ground.
Under cross‑examination he agreed that driving a motor vehicle from his mother's house onto Canning Highway required extra care due to the rise in the roadway.
He agreed that at 422 Canning Highway, the visibility to the left was limited because of the rise in the road.
He stated that on Saturday mornings he would not pull out across the roadway to head north, but instead turn to his left to go south to avoid having to cross Canning Highway. However, he stated that he had an older car and therefore had limited acceleration.
The defendant also called Mr Mark James Murphy.
Mr Murphy's evidence was that he was travelling in a southerly direction on Canning Highway on the day of the accident.
He stated that he was in the kerb side lane and there was a vehicle to his right in the centre lane
He also stated that there were two other vehicles ahead of him – one in the kerb side lane and one in the centre lane.
He said that the motorcycle passed his vehicle and then moved into the left lane to pass the vehicle on Mr Murphy's right. After passing this vehicle, the motorcycle then move back into the centre lane.
He described the motorcycle passing him very quickly.
He described the noise of the motorcycle as quite frightening.
He said his vehicle was doing about 65 kilometres per hour when passed by the motorcycle.
He said the motorcyclist was going a lot faster than his vehicle.
He saw the pillion passenger waving his left arm, and he got the impression he might have been enticing the driver to go faster.
He thought the impact occurred at Saunders Street intersection. He observed the motorcycle giving off smoke from the back tyre just prior to the collision.
He admitted under cross‑examination that at an earlier hearing in 2001 he had not mentioned the two vehicles ahead of him. He stated that on reflection since he had recalled these two vehicles.
He said that at the time he saw the accident he was adjacent to the Gull service station (which was 281 metres from the accident scene). He stated that the defendant's vehicle had stopped in the centre of the lane just prior to the plaintiff's motorcycle colliding with it.
The defendant also called an expert, Mr Martin Eric Simms, who held engineering qualifications and gave evidence as a motor vehicle accident expert.
Mr Simms in a report dated 29 March 2006 made a calculation of the speed of the plaintiff's motorcycle at impact, based upon the assumption that a part broke free from the motorcycle on impact and travelled on a trajectory through the air from the point of impact to the awning at 428 Canning Highway, being the house of Mr Raymond's mother.
Based upon this assumption he calculated the speed of the plaintiff's motorcycle at impact to be 86 kilometres per hour.
He then made a further calculation based upon evidence that there was a 20 metre skid mark prior to impact as he thought was suggested by a police statement.
This calculation also took into account the calculated speed of impact as being 86 kilometres per hour. Based upon the calculated speed of the impact and the length of the skid mark, Mr Simms calculated that the speed of the vehicle prior to skidding was 98.6 kilometres per hour.
The plaintiff objected to these calculations on the basis that they were based on assumptions which were not supported by the evidence.
In relation to the first calculation, I do not accept that if a part from the motorcycle hit the house of Mr Raymond's mother, that it necessarily travelled on a trajectory through the air from the point of impact to the house. There is evidence that the motorcycle travelled some distance after impact and collided with at least a railing further down the roadway. In my opinion it is more likely that any part that flew off the motorcycle and hit the residence of Mr Raymond's mother broke free from the motorcycle on the motorcycle's impact with the railing. The reason for this is that it is closer to Mrs Raymond's property and there is a clear line of flight to the awning where the tile was broken.
If the part of the motorcycle that landed on Mrs Raymond's awning left the motorcycle at the point of the collision with the defendant's vehicle, then it would have had to pass either through or over very tall trees to have landed on the house of Mrs Raymond.
Once the assumption of Mr Simms as to the line of trajectory of the motorcycle part is cast into doubt, the calculation of the speed of the motorcycle at the point of impact becomes invalid. Further, once this calculation is invalid it also invalidates the calculation made of the speed of the motorcycle before it allegedly created the skid mark on the roadway.
However there are further uncertainties in relation to the calculation of the speed of the motorcycle as calculated by Mr Simms. Mr Simms assumed that there was a 20 metre skid mark prior to the collision. He made this assumption after reading a written statement of Constable Christine Catherine Game dated 13 December 2005 which was tendered into evidence by consent (exhibit 9).
In the statement of Constable Game the skid mark was described in the following terms:
"There was a skid mark, east of the wreck of the motorcycle. It was approximately 20 metres in length ending approximately 100 metres west of Saunders Street. It appeared to have been made by the motorcycle." (I understand 'east' to mean what I have described in this judgment as being 'north')
This description of the skid mark does not make it clear as to whether the skid mark was before the point of impact or after the impact.
It is estimated to be approximately 100 metres west of Saunders Street but the evidence of Mr Simms was that the measurements he carried out indicated that the impact occurred 81 metres from Saunders Street. Mr Simms assumed that the skid mark was before the collision because, in his opinion, it was unlikely that a skid mark would occur after the collision.
No evidence was produced in the form of a plan of the scene of the accident and indicating the position of the skid mark. On the basis of the evidence before me I am unable to conclude whether the skid mark was before or after the point of the collision between the plaintiff's motorcycle and the defendant's vehicle.
Mr Simms measured the distance from the centre of the driveway at 422 Canning Highway to where Mr Raymond indicated a passenger on the motorcycle came to rest to be 83 metres.
Findings
I make the following findings:
1.At a point on Canning Highway immediately south of the driveway of 422 Canning Highway is a rise in the road. This rise in the road limits the visibility of a driver of a vehicle coming out of the driveway of 422 Canning Highway of vehicles approaching from a southerly direction. This creates a significant hazard.
2.A person driving a vehicle that is pulling out of 422 Canning Highway has good visibility over a long distance looking north at vehicles approaching in the south bound lanes. Accordingly, any driver attempting to pull across the south bound lanes and enter into the north bound lanes, is likely to have his or her attention more focussed on the north bound lanes and vehicles coming over the rise.
3.I find that Ms Turner's vehicle entered Canning Highway from Saunders Street which is 81 metres from the driveway of 422 Canning Highway (this distance is agreed by the parties).
4.The plaintiff's evidence was that at the time Ms Turner entered Canning Highway, the plaintiff's motorcycle was 100 metres from Saunders Street. However, Ms Turner stated that when she looked in a northerly direction she did not see any motorcycle.
I am satisfied that the motorcycle driven by the plaintiff was in fact more than 100 metres from Saunders Street, otherwise it would have been observed by Ms Turner when she looked in a northerly direction prior to entering Canning Highway.
5.I find that the plaintiff's motorcycle had passed the vehicles of Ms Perron and Mr Murphy at a very high speed. I find that after the plaintiff passed the vehicles of Ms Perron and Mr Murphy, he had a clear roadway ahead of him in both lanes until Ms Turner's vehicle pulled out into Canning Highway ahead of him.
6.I do not accept the evidence of Ms Perron, Mr Murphy and the defendant that there was another vehicle travelling in the centre lane near Ms Turner's vehicle. This is contrary to Ms Turner's evidence who said she did not observe any other vehicles.
Ms Perron's account of the accident was incorrect and I conclude that she was also incorrect about the presence of another vehicle in the centre lane. I believe that the vehicle that she thought was in the centre lane ahead of her was probably the defendant's vehicle that had pulled out of the driveway.
Further, I reject the evidence of Mr Murphy that there was a second vehicle in the centre lane ahead of him. At an earlier hearing he stated there was only one vehicle (which I find was Ms Turner's vehicle). Also, he was confused as to where the accident occurred, believing that it occurred near the corner of Saunders Street. In light of these factors I am not prepared to rely upon his evidence. I also believe that the defendant is mistaken in saying that there were two vehicles. I conclude that her recollection of the accident has been affected by the trauma of the collision. I believe her evidence of a second vehicle in the centre south bound lane may have been Ms Perron's vehicle which was passed by the plaintiff's motorcycle some distance back before the plaintiff's motorcycle passed Ms Turner's vehicle.
7.I am satisfied that shortly after Ms Turner's vehicle turned into Canning Highway, the defendant eased her vehicle out onto Canning Highway. Ms Turner said she was about half way between Saunders Street and the driveway of 422 Canning Highway when the defendant's vehicle pulled out onto the highway. This would make it a distance of approximately 40.5 metres. The defendant said that when she pulled out, that Ms Turner's vehicle was about one car length from the corner of Saunders Street. Both witnesses were giving estimates only. I am satisfied on the combination of their evidence that at the time that the defendant's vehicle pulled out onto the highway, Ms Turner's vehicle was probably about 40 to 50 metres away.
8.I find that the defendant, Mrs Gorman, looked to her right (in a northerly direction) before pulling out onto Canning Highway from 422 Canning Highway Como. When she looked she did not see the plaintiff's motorcycle. At this point of time I conclude that the plaintiff's motorcycle was some considerable distance away. The defendant did observe the vehicle driven by Ms Turner which was closer to her. The defendant concluded from the distance between her and Ms Turner's vehicle and the speed of Ms Turner's vehicle that it was safe for the defendant to pull out across the south bound lanes to enter the north bound lanes. I am satisfied that after the defendant drove her vehicle onto Canning Highway she did see the plaintiff's motorcycle in the distance but believed that in view of the distance it was away she need not be concerned by its approach.
9.I am satisfied that the evidence of Ms Turner gives the most reliable account of what occurred. Ms Turner was an independent witness who was ideally located to observe the defendant's vehicle. Further, I believe that her recollection has not been tainted as a result of the trauma of being involved in the impact. Although I find that the defendant is an honest witness, I believe her recollection of exactly what occurred has been affected by the trauma she suffered as a result of the impact. On the basis of Ms Turner's evidence I conclude that the defendant pulled out onto the south bound lanes and then slowed down and almost stopped on the median strip. At that point of time the rear of her vehicle substantially blocked the centre south bound lane. This is also confirmed by the evidence of Mr Murphy.
10.Again on the basis of Ms Turner's evidence, I am satisfied that after the defendant's vehicle stopped near the median strip, Ms Turner heard a loud noise behind her and she then observed the plaintiff's motorcycle in her rear side mirror. The plaintiff's motorcycle then passed Ms Turner's vehicle at high speed and collided with the defendant's vehicle.
11.I am satisfied that the motorcycle driven by the plaintiff immediately prior to impact had been travelling well in excess of the speed limit of 60 kilometres per hour, and probably in the vicinity of 90 to 100 kilometres per hour. I base this conclusion on the following –
(a)I am satisfied that the plaintiff gave a conservative estimate of his speed when he admitted that he initially accelerated up to about 80 kilometres per hour to pass two vehicles. I reject the plaintiff's evidence that he then slowed down. Once he had passed the other two vehicles he was faced with a long stretch of open road and I am satisfied that he maintained his motorcycle at a high speed. This is consistent with the evidence of Ms Turner who saw the motorcycle just prior to the collision.
I also reject the evidence of Mr Farr that the plaintiff slowed down after he had passed vehicles near the Gull service station. Mr Farr I find to be an unreliable witness.
Overall, I conclude that the plaintiff and Mr Farr attempted to minimise the plaintiff's responsibility for the accident. The plaintiff did not mention in his evidence‑in‑chief that he had seen the defendant's vehicle in the driveway when he was about 200 metres from it. He stated the first time he saw the plaintiff's vehicle was when he was 30 metres from the vehicle. I believe he deliberately did not mention in his evidence‑in‑chief that he had seen the defendant's vehicle in the driveway earlier. This was meant to create the impression that the defendant's vehicle suddenly pulled out in front of the plaintiff's motorcycle without the plaintiff having any prior warning of its presence and giving him no opportunity to avoid a collision. Further, his evidence that he first saw the vehicle when he was only 30 metres from it, contradicted his answers in interrogatories where he said 15 metres. Although these were only approximations, I believe that the difference is significant and indicates the unreliability of the plaintiff's evidence as to the circumstances of the accident.
(b)A speed of 90 to 100 kilometres per hour is consistent with Ms Turner's evidence, who, as I have stated, I find a reliable witness. One has to be somewhat cautious about estimates of speeds particularly when based in part on the sound of a motorcycle, because the sound of a motorcycle can cause alarm to a driver of a motor vehicle being suddenly passed. However notwithstanding this caution, I accept Ms Turner's evidence that the motorcycle was travelling at a very high speed. She heard a sound which she described as a very high pitched whine. She also saw the motorcycle first in her right hand rear mirror and then immediately after this, the motorcycle passed her. Her opinion was that the motorcycle was travelling very fast. This is also consistent with the evidence of Ms Perron and Mr Murphy who described the motorcycle passing them at a very high speed earlier.
(c)I find that after the collision between the two vehicles the plaintiff and his pillion passenger were thrown through the air and on hitting the ground then tumbled some distance before coming to rest 80 to 100 metres down the roadway from the point of the collision. I accept the evidence of Mr Raymond that one of the persons from the motorcycle finished up in front of the driveway of 432 Canning Highway and Mr Simms had measured the distance from the driveway of 422 to 432 Canning Highway as being 83 metres. Also the petrol tank was completely removed from the motorcycle as a result of the impact from the defendant's vehicle as indicated by the evidence of Ms Turner. I am satisfied that the body of the motorcycle after the collision with the defendant's vehicle ricocheted off at an angle and impacted with a cycling railing on the footpath on the left hand side of the south bound lane. Also a part of the motorcycle flew off and hit an awning on the front of the house at 428 Canning Highway, Como. I believe the considerable distance the plaintiff and the pillion passenger travelled after the collision, and the distance that parts of the motorcycle travelled after the collision are consistent with the motorcycle travelling at a high speed at the time of the collision.
(d)The plaintiff's counsel presented a number of arithmetic calculations to suggest the evidence did not support the conclusion that the plaintiff's motorcycle was travelling at high speed prior to impact.
Firstly the plaintiff's counsel relied upon the evidence of the defendant who stated that she observed the plaintiff's motorcycle 50 metres away, and she observed him for a few seconds before impact. From this the plaintiff's counsel submitted as follows:
"By simple arithmetic, if the plaintiff was travelling 70 kilometres per hour for those 50 metres, it would take him 2.57 seconds to reach the point of impact. At 60 kilometres per hour the result is three seconds. (See Simms' evidence in support of speed in relation to reaction time, response time and braking time at 270). Further the faster the plaintiff is travelling, the less time there was to traverse those 50 metres. What is critical is the evidence of the distance of the plaintiff when the defendant first saw him, is the only evidence of such distance on the defendant's case. No other evidence has been produced by any other defendant's witnesses. Ms Turner and the plaintiff indicated the lesser distance before the defendant commenced her manoeuvre. Thus, there can be no inference of speed at or about the point of impact".
However, the defendant, Ms Gordon was only giving an estimate when she stated that the motorcycle was approximately 50 metres away when she first saw it. In relation to the estimate of two seconds, the defendant in her evidence stated that this was not an exact time. She stated "it appeared like seconds". (T175)
This makes the calculations of the plaintiff's counsel somewhat imprecise.
Further, if the plaintiff's motorcycle was travelling at 90 kilometres per hour, then he would travel the distance of 50 metres in two seconds which is consistent with the defendant's evidence.
Further, the plaintiff's counsel in closing submissions suggested the evidence of Ms Turner that when she looked to her right she did not see the plaintiff's motorcycle, did not necessarily lead to an inference that the motorcyclist was so far back that it must have travelled at very high speed to reach the point of impact with the defendant's vehicle at about the same time that Ms Turner's vehicle travelled from Saunders Street to the point of impact. The written submissions stated as follows:
"Arithmetic dictates that if she travelled 91 metres from Saunders Street to the point of impact or parallel with it at an average speed of 20 kilometres per hour (to be reasonably inferred from the evidence), it would take her 14.72 seconds to get there. After she saw that the road to her right was clear and she entered Canning Highway, it would be reasonable to allow for two seconds. If the plaintiff was travelling at 65 kilometres per hour for those two seconds and then, the 14.2 seconds, ie, 16.72 seconds, he would have traversed a distance of 18.05 metres per second, a distance of 301.7 metres. This places the plaintiff east of the Gull service station which was 81 metres plus 200 metres away on the evidence agreed. If the plaintiff maintained a speed of 70 kilometres per hour for the same 16.72 seconds, he would have traversed 325.1 metres in that time, ie, out of sight of Turner when she entered Canning Highway."
The submission makes a number of assumptions which are not necessarily valid (eg, the average speed of Ms Turner's vehicle and the number of seconds before she entered Canning Highway).
However, even if these assumptions are correct, the calculation suggested does not remove the possibility of the plaintiff travelling at a higher speed. If the plaintiff was travelling at 100 kilometres per hour (27.8 metres per second) in the 16.72 seconds used by the plaintiff's calculation, the plaintiff would have travelled 464.8 metres (ie, 383.8 metres from the corner of Saunders Street) and the possibility of him being out of sight of Ms Turner is even greater due to greater distance.
My finding that the plaintiff was travelling at an excessive speed is not based upon Ms Turner's evidence that she did not see the plaintiff's motorcycle just before entering into Canning Highway, but upon other items of evidence mentioned earlier.
12.I find that the plaintiff braked heavily but was unable to slow down so as to avoid a collision with the defendant's vehicle due to the excessive speed the motorcycle was travelling. The plaintiff was not able to veer to the right to avoid the collision because this would have placed his motorcycle on the wrong side of the highway and into the path of on‑coming vehicles which might come over the rise south of the point of collision. Further, the plaintiff was not able to veer to the left because there was only a small gap in the centre lane between the kerb side lane in which Ms Turner's vehicle was travelling. I am unable to say whether the plaintiff might have been able to negotiate his motorcycle through the gap if he had been travelling slower, but I am satisfied he was not able to do so at the speed he was travelling.
Conclusions on liability
I am satisfied that the defendant was negligent in pulling out onto Canning Highway, slowing down and stopping her vehicle with the rear portion of her vehicle obstructing the greater part of the centre lane for south bound traffic in Canning Highway.
I am also satisfied that the plaintiff was negligent in travelling at an excessive speed, probably somewhere in the vicinity of 90 to 100 kilometres per hour.
The question of causation is essentially a question of fact to be answered by reference to commonsense and experience [March v Stramare (1991) 171 CLR 506].
I am satisfied that the defendant's negligence in part caused the accident because her vehicle was placed in a position blocking the centre south bound lane of Canning Highway.
I am also satisfied that the plaintiff's negligence in part caused the accident in that –
(a)when the defendant looked before driving her vehicle out onto Canning Highway, she was less likely to see and take into account the plaintiff's motorcycle as at that point the plaintiff's motorcycle would have been a considerable distance away from the point of impact;
(b)if the plaintiff had been travelling at the speed limit, given the fact that he observed the defendant's vehicle in the driveway about to enter Canning Highway when he was 200 metres from the point of impact, he had sufficient time to slow down and stop before the collision, or at least reduce the impact of the collision to a minor one.
Section 4 of the Law Reform (Contributory Negligence and Tort Feasors Contribution) Act 1947 provides as follows:
"(1)Whenever in any claim for damages founded on an allegation of negligence the Court is satisfied that the defendant was guilty of an act of negligence conducing to the happening of the event which caused the damage then notwithstanding that the plaintiff had the last opportunity of avoiding or could by the exercise of reasonable care, have avoided the consequences of the defendant's act or might otherwise beheld guilty of contributory negligence, the defendant shall not for that reason be entitled to judgment, but the Court shall reduce the damages which would be recoverable by the plaintiff if the happening of the event which caused the damage had been solely due to the negligence of the defendant to such extent as the Court thinks just in accordance with the degree of negligence attributable to the plaintiff:"
The making of an apportionment under s 4 of the Law Reform (Contributory Negligence and Tort Feasors Contribution) Act 1947 involves a comparison both of culpability and of the relative importance of the acts of the parties in causing the damage: Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494. In that case the High Court pointed out that it is the whole of the conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.
It is also now settled that the failure to take precautions to lessen injury may amount to contributory negligence: Motor Vehicle Insurance Trust v Wilson (1976) WAR 175. It is for the defendant to prove contributory negligence and in order to obtain an apportionment under this head of defence, the defendant must show that the plaintiff's injuries would have been less if the plaintiff had taken the appropriate precautions. An example of this are injuries arising from a failure to wear a seat belt (Richards v Mills (2003) WASCA 97 at 26).
In my opinion some allowance needs to be taken into account for the fact that the speed of the motorcycle meant that the plaintiff was thrown through the air a very long distance, and then tumbled along the roadway, a combined distance of just over 80 metres. Mr Desmond Williams, orthopaedic surgeon, gave evidence that the plaintiff had suffered a fracture of the right lower leg which was compound, a fracture of the right knee cap and fractures of the metacarpal bone area in the right hand.
He stated in his evidence that the fracture of the right leg which was the most serious injury, most likely occurred when the plaintiff hit the ground and that a lot of damage to that fracture would have occurred as he tumbled down the roadway. Accordingly, I conclude that the plaintiff suffered a greater injury than he would have otherwise have suffered if the collision had occurred with the plaintiff travelling at or near the speed limit. However, it is not a matter of calculating a separate reduction for contributory negligence for exacerbation of injuries due to lack of precaution on the part of the plaintiff. It is sufficient if I make an overall assessment of contributory negligence as a matter of discretion and judgment, weighing up the different considerations including the extent to which speed contributed to the occurrence of the accident and also the extent to which speed may have exacerbated the extent of injuries suffered by the plaintiff: Richards v Mills (supra).
In this matter I conclude that it would be just if the plaintiff's claim be reduced by 50 per cent.
Assessment of damages
As a result of the accident the plaintiff suffered serious injuries to his right leg. The evidence of the plaintiff's injuries, his disabilities and his loss and damage is largely uncontested. I make findings in accordance with the evidence recited by me unless otherwise indicated.
The history of his treatment was summarised in a medical report from Mr Desmond Williams, orthopaedic surgeon, dated 21 June 2004.
In this report he stated as follows:
"His initial injuries included a fracture of the right lower leg which was compound.
Further he had a fracture of his right kneecap. Further he had fractures of the metacarpal bone area in the right hand.
He had grazes and abrasions on his arm and left shoulder and neck areas.
He was taken to Royal Perth Hospital and was in hospital a total of some eight months.
He was in the Intensive Care Unit with a fat embolus and for some three weeks.
Following his accident he was on crutches for some two years. He was off work after the injury for some three years.
…
He notes that he has had three episodes of infection and three external fixators and bone grafting with some twenty one operations in all and his final procedure involved in a Ilizarov frame."
Later in the report, Mr Williams provided further details as follows:
"With regard to the accident of 4 March 2000 we have outlined the impact injury when he was thrown over the car he had a severe fracture of the right lower limb with a compound fracture to the tibia and fibula and an open knee injury with almost complete avulsion of the patella.
It was noted he had had twenty one surgical procedures involving internal fixation and external fixation and bone grafting and soft tissue reconstruction with appropriate grafting procedures.
It was further noted his recovery was complicated by the development of infection in the bone being osteomyelitis and there was a lower limb neurological injury to the right foot creating a drop foot and sensory change in the dorsum.
It was noted the crush injury to his right hand and the metacarpal fractures documented and the need for internal fixation."
The plaintiff in his evidence stated that he was taken by ambulance to the Royal Perth Hospital. He says that whilst in hospital a fat embolism was diagnosed and he was placed in intensive care for about three weeks. During this period he was in and out of consciousness.
The plaintiff described how he suffered an infection to the right leg at the site of the fracture, and as a result of this, a portion of the bone was removed. This was confirmed in a report of Mr Dermot Collopy, orthopaedic surgeon, undated, but referring to surgery conducted on 15 June 2000. This report stated, inter alia, as follows:
"HISTORY:
Infected non union tibia with dysvascular bone ends.
TREATMENT:
General anaesthetic. Intravenous antibiotics. No tourniquet used. Wounds re‑opened. Interlocking screws and AO universal tibial nail removed. Frank pus in intra‑dedullary canal. Distal outflow hole created using ultra distal interlocking screw holes. Through and through debridement of the canal including reaming of the canal. Pulsatile lavage to canal. Can brushed. Acute shortening of the tibia with excision two to three centimetres of tibial bone from each none fragment. Excision five centimetres distal fibula at site of fibular fracture to allow acute shortening of tibia. Simple DY frame constructed to stabilise tibia. Skin defect of twelve centimetres by six centimetres in anteromedial pretibial skin with exposed tibial bone."
A further operation was carried out on 17 June 2000 which was reported on by Mr Dermot Collopy as follows:
"General anaesthetic. Intravenous antibiotics. No tourniquet used. DY Ex‑fix used. Original nail entry wound re‑opened. Intra‑medullary canal irrigated proximally and distally with pustile lavage. No evidence of ongoing infection. Further shortening of distal bone surface by one centimetre. Bleeding bone surfaces now present on both sides of fracture gap. Thorough irrigation of wound and tibial re‑shortened and DY reapplied."
As a result of further infection the plaintiff suffered a wound breakdown which required the wound edge to be excised. Mr Dermot Collopy reported on this procedure as follows:
"HISTORY
Three months on from grade two open fracture right tibia. Ex‑fix and delayed exchange to an intra‑medullary nail. Complicated by early post nail infection with wound breakdown and intra‑medullary sepsis.
PROCEDURE:
General anaesthetic. Tourniquet. Intravenous antibiotics. Pretibial skin wound with full thickness wound breakdown. Wound edges excised to viable tissue. Soft tissue defect created. Ring sequestrum middle third tibia curetted. Nail on view through fracture site. Bone ends appear non viable. Thorough irrigation and debridement."
As a result of the wound breakdown, the plaintiff required plastic surgery performed by Mr Andrew Crocker who performed a stable soft tissue cover to the open fracture wound on 22 June 2000.
Also the plaintiff required plastic surgery to wounds suffered to his back. The plaintiff was fitted with an Ilizarov frame which was fitted to the leg. This was removed in about March 2001 as confirmed by a report of Mr Doug Sneddon, orthopaedic surgeon, dated 6 April 2001.
After accident injuries
The plaintiff says that prior to the accident he was an active young man, playing a lot of sport including water skiing.
He described in his evidence how on being discharged from hospital he became dependent on gratuitous services for home help and how his business activities were affected by his disabilities. A description of these matters will be given later in the judgment.
He says that he is now only able to walk short distances and if he walks longer distances the pain becomes unbearable.
He says that he takes pain‑killers nearly every day.
He complained that he suffers stiffness in his ankle which he described as being nearly frozen.
The plaintiff also has scarring in the right leg at the knee and below the knee in the site of the open wound.
The donor sites from the top of his leg which were used for skin grafts for his abrasions to his back have to be protected from the sun. The plaintiff has to maintain an exercise programme which involves using a gymnasium about twice a week.
Mr Desmond Williams gave evidence on behalf of the plaintiff. He prepared two medical reports dated 21 June 2004 and 21 March 2006, which were tendered into evidence.
In his report dated 21 March 2006 Mr Williams detailed his findings when he reviewed the plaintiff in 2006 as follows:
"His current presentation was of increasing right ankle pain and stiffness. He had instability in his right knee and giving way. In his right hand he stated he had arthritis with pain and swelling in the little and ring fingers. He is right hand dominant.
Clinical review of the right knee shows the quadriceps is poor in bulk and tone. He had a good range of right knee motion. There was crepitus on right knee motion.
The collateral and cruciate ligaments were stable. There was no undue instability and laxity demonstrated on the examination couch. He notes pain about the patellar area.
Clinical review of the right ankle shows it lacks full extension by 5‑10° and flexion is just a jog of motion."
Mr Williams arranged x‑rays of the right tibia, right knee and right ankle. He also arranged an MRI of the right ankle and knee on 14 March 2006.
In his report of 21 March 2006, Mr Williams concluded as follows:
"a)With regards to his progress since previous review in June 2004, I have outlined his current symptoms of increasing right ankle pain and stiffness and ongoing right knee laxity and giving way. In the right hand he has pain and swelling about the little and ring fingers.
b)The diagnosis is of ongoing consequences of the motor vehicle accident 4th March 2000 and his major injury has been the right tibial compound fracture with the need for extensive orthopaedic management resulting in the use of external fixators, bone grafting and appropriate skin grafting and he had a period of some eight months of hospitalisation and with the fracture healed in sound alignment.
The ongoing problems relate to the ankle where he has post traumatic osteoarthritic change evidence and further mild arthritic change is already evident in the tarsal areas of the right foot.
In the right knee he has some heated fractures in sound position in the metacarpals 4 and 5 and there is some weakness in the hand but overall, no significant progressive hand pathology.
c)With regard to ongoing investigations, I have carried out current plain x‑rays of the right hand, right wrist, right tibia, right knee and right ankle.
In the right hand x‑rays we have seen the fractures of the neck of the 4th metacarpal and fracture of the base of the 5th metacarpal. In the right wrist there is subtle evidence of an undisplaced fracture of the radiostyloid process.
In the right tibia the fracture has consolidated. In the right knee there was the early joint space narrowing of the medial compartment and some bony spurring at the inferior margin of the patella at the attachment of the patellar tendon reflecting the patella and patellar tendon injury.
The plain x‑rays of the ankle showed the osteoarthritic change of anterior osteophytes at the ankle joint.
I then proceeded to the appropriate investigations of MRI of the right knee and ankle and I have defined those changes fully in the text of the report.
d)With regard to recommendations for future medical management, I would note there is no immediate indication for surgical management but I would state the following may well be needed within the period of the coming five years:
i)In the right ankle he may require an arthroscopic procedure with limited arthrotomy and excision of the anterior arthritic spurs on the tibial and talar surface which limit extension with impingement. This need for surgery may emerge in the coming one to two years as there is increasing ankle pain and this surgical measure will offer some options of relief and improved motion range.
ii)In the right knee he will require, within a five year period, an arthroscopic procedure and appropriate chondroplasty of the patellofemoral surface.
Surgical measures in further management in the medium to longer term will hinge on the progression of the traumatic arthritis.
I see his ankle arthritis as the most significant problem and he may well come, within a ten year period, to an ankle fusion procedure or ankle arthrodesis.
e)With regard to the emergence of post traumatic degenerative change, we are already seeing it in the right ankle and in the talonavicular and navicular cuneiform bones in the tarsal area of the right foot and further in the right knee we have the medial compartment osteoarthritic change.
f)With regard to permanent residual disability, I have made assessments earlier in the knee and ankle at 20‑25% and at follow‑up review, supported by the MRI studies. I would allocate the following percentages of permanent residual disability:
i)In the right ankle related to progressive post traumatic arthritis he has a 25% permanent residual disability assessed as a percentage disability of the right lower leg below the knee.
ii)In the right knee he has progressive post traumatic arthritis evidence in the patellofemoral joint area with chondromalacia and in the medial compartment with the joint space narrowing and I would see a level of permanent residual disability at 25% assessed as a percentage disability of the right lower leg at knee level and above.
iii)In the right hand he has annoying levels of disability and I have not measured those as a percentage."
Mr Williams gave evidence at the trial. His evidence was that although the plaintiff suffered osteoporosis as a result of his accident injuries, this will resolve with exercise. However, Mr Williams stated that the plaintiff continues to suffer progressive arthritis of the ankle and the knee as a result of his accident. Mr Williams stated that the plaintiff will continue to get worse with regard to pain and stiffness, symptoms of arthritis, with the ankle leading in terms of that increase of symptoms, with the knee progressing as a secondary symptom.
Mr Williams assessed the disability to the right leg to be in the range of 50 to 55 per cent based upon a 20 per cent disability to the knee, a 20 to 25 per cent of the ankle, and a further 10 per cent disability arising from soft tissue damage and nerve damage.
Loss of earning capacity
General history
The plaintiff gave evidence that he completed Year 12 High School. Whilst at school studying he worked part‑time at Woolworths and continued with this after leaving school. He also completed a course at REIWA and commenced working in the real estate business. However, he did not like this work and was not successful at it so he started working as a truck driver at the age of 18. He worked with a meat supplier delivering carcasses of meat. This involved lifting heavy carcasses of meat to load and unload a truck.
He spent a period of time overseas travelling and in August 1998 the plaintiff purchased a lawn mowing round for $7,500. He further invested in the business by buying new equipment. Initially the business consisted of about 70 customers and was part‑time only. The plaintiff says that he built up the business and at the time of the accident it had increased to approximately 140 customers. He says that he was doing about 55 hours per week in summer and 35 hours in winter. He stated that also in his spare time he obtained work cleaning gutters.
He stated that in about 1999 he also started an asbestos business removing asbestos fences, sheds and cladding.
Immediately after the accident the plaintiff arranged for his brother‑in‑law to conduct the lawn mowing round for him. Ultimately the lawn mowing round was sold in August 2000 as the plaintiff concluded he would never be able to return to this work.
The plaintiff tried to continue the asbestos work shortly after he was discharged from hospital by giving the odd quote but was unable to obtain any work at this time.
The plaintiff purchased a truck in the financial year ending 30 June 2001 anticipating that he could return to the asbestos business and expand it. After the purchase of the truck the plaintiff was unable to get back to work due to further hospitalisation and so he engaged a Mr Ken Dunn to do the physical side of the asbestos work. Later, Mr Dunn was replaced by a Mr Paul Young.
The plaintiff remained involved in the asbestos business by doing quotes and attending to the administration of the business. All of the physical work was done by Mr Paul Young. He entered into a profit sharing arrangement with Mr Young.
The plaintiff stated that if it was not for his accident injuries he would conduct the business alone attending to the labouring work himself. He believed that if he had not been injured he would have been able to expand the business and do a lot more smaller jobs to increase the profitability of the business.
The arrangement with Mr Young is that they equally share the gross profits after paying tipping fees, but otherwise the plaintiff covers all other expenses of the business.
Medical evidence
Mr Desmond Williams in his report dated 21 June 2004 stated as follows:
"n)I don't believe he will cope with work as an asbestos removal contractor.
o)I don't believe he will cope with work activities as a truck driver.
p)His future work capacities will be sedentary with appropriate desk or bench work areas with a flexible work station so he avoids stresses on his lower limbs."
In his further report dated 21 March 2006, Mr Desmond Williams stated as follows:
"g)With regard to work on an unrestricted basis, I do not believe he is fit to work as a lawn‑mowing contractor or employee.
I believe he can cope with the asbestos removal contract work where he currently works in a supervisory capacity and giving quotes.
His limitations will be with regard to coping with stairs and ladders and irregular ground and repetitive knee bending and ankle bending. He will be limited with regard to long walking and long standing.
He needs light sedentary work activities in a flexible workstation.
With regard to work as a truck driver, he could cope with light counter work activities with the limitations I have discussed.
h)I would see his future work best directed towards light administrative or supervisory work as outlined. He should be assisted with further TAFE training to build up that work capacity."
In his evidence at the trial, Mr Williams stated that the plaintiff would not be able to operate as a truck driver as he would not be able to get up and down high trucks. He may cope with light courier work but with limitations. He will not cope with running in and out of buildings, stairs and ladders and across irregular ground. However, he perhaps could cope for a period with simple deliveries with light weights. He would not be able to handle positions involving walking for long periods or standing for long periods.
Mr Williams stated that the plaintiff needed to look for work which enabled him to be seated at a desk or bench. He believed the plaintiff could benefit from TAFE training and required a work place situation which provided flexibility.
In his report of 21 June 2004, Mr Williams noted that the plaintiff had been involved in a motor vehicle accident in 1993 when he was a passenger in a vehicle involved in a roll‑over. The plaintiff sustained a fracture of L1 vertebral transverse process and a lumbar scan showed a right sided disc protrusion at L1. The report further noted the plaintiff had a motor vehicle accident in 1995 when he was a pedestrian struck by a taxi, and suffered a fracture to his left tibia requiring internal fixation. The report stated that the plaintiff returned to truck driving and there were some left knee problems persisting when kneeling. The left knee had evidence of chondromalacia patellae and suggestive of cruciate and collateral ligament laxity in the left leg.
Mr Williams was cross‑examined about the extent that these earlier injuries limited the plaintiff's earning capacity. He stated that he did not think these earlier injuries would have imposed serious limitations on the plaintiff's future except that he would have been advised not to be a ditch digger or otherwise put undue stresses on his back. Mr Williams agreed that the plaintiff should have avoided working in an abattoir lifting heavy carcasses because of his earlier lumbar spine injury.
In relation to his left knee injury, Mr Williams stated that the plaintiff would have been wise to have avoided stresses to this knee for example using stairs and ladders, irregular ground and awkward bent knee postures. However, Mr Williams did not believe that the plaintiff's left knee injury was such as to incapacitate him from continuing to work as a lawn mowing contractor, although he was not so sure what the position would have been in say, 20 years time.
Assessment of loss of earning capacity
The plaintiff is entitled to damages for loss of earning capacity. This falls into two categories –
(a)Pre‑judgment loss (past loss of earnings)
(b)Future loss of earning capacity
(a) Past loss of earnings
The starting point in assessing the value of the plaintiff's loss of earning capacity up to the date of judgment is to assess the value of his earning capacity at the time of the accident.
This involves assessing, what, if the accident had not occurred, the plaintiff would (as opposed to could) have expected to have at his disposal by exercising that capacity (see Husher v Husher (1999) 197 CLR 138 at 147). This is in accordance with the more widely expressed principle that compensation for loss of earning capacity is paid only because it is or may be productive of financial loss (see Wynn v New South Wales Insurance Ministerial Corporation (1995) 70 ALJR 147 at 151 – 2; Dawson, Toohey, Cauldron and Gummow JJ).
The plaintiff tendered into evidence copies of his income tax returns for the financial years from 30 June 1994 to 30 June 2005.
The critical year in terms of assessing his pre‑accident earning capacity is the financial year ending 30 June 2000.
At the time of the accident the plaintiff had been operating the lawn mowing business since August 1998, building it up and he had also started an asbestos business in 1999. The plaintiff ultimately intended to sell the lawn mowing business and concentrate on the asbestos business which he anticipated would provide him with a greater income.
According to the plaintiff's income tax return for the year ending 30 June 2000 he earned a net income from the two businesses of $19,466.
The accident occurred on 4 March 2000. The plaintiff's evidence was that after the accident he paid approximately $3,200 to his brother‑in‑law to operate the lawn mowing round. For the purposes of making a calculation of the assessment of his loss of earning capacity, I believe it is appropriate to add this amount to his net income which leads it to a total of $22,666.
The plaintiff's counsel also contended three further amounts should be added to the income to ascertain his income in the year ending 30 June 2000. These were as follows.
Depreciation items.
The income tax return showed a deduction for depreciation in the year ending 30 June 2000 of $4,176. The plaintiff contends this does not represent an actual out of pocket expense and the plaintiff had use of this sum of money for his own personal use. Accordingly, it is argued that this should be added to his income for the year. However, this submission fails to take into account that the plaintiff was operating two businesses which required plant and equipment. This plant and equipment would deteriorate with time and require capital investment in the business to replace it. The expenditure on capital items is complicated by the fact that the form of the capital expenditure may vary and the extent to which it produces a tax deduction would depend upon the form of the capital investment (for example whether new equipment is purchased under hire purchase or by some other means of finance). In the circumstances I am not convinced that the additional cash received in 2000 above the taxable income by virtue of the notional expense of depreciation should be taken into account, given that in later years there may need to be a capital investment to continue to replace the depreciating items.
Items of personal expenditure claimed in tax returns
In the year ending 30 June 2000, the plaintiff claimed motor vehicle expenses of $4,333. The plaintiff stated in his evidence that 20 per cent of this was for personal use (being an amount of $866). The plaintiff says this should be added to his income for the year ending 30 June 2000.
No documentation was presented in the form of log books to support this contention. Further, even if allowance is made for this, the plaintiff has already received a tax deduction for such expense.
In my view, having claimed an amount as a business expense deduction, I should not make any allowance for a claimed personal component without convincing evidence that the tax return does not reflect the true position (Giorginis v Kastrati (1988) 49 SASR 371 at pp 374 – 376, Von Doussa J).
In this matter I am not satisfied on the balance of probabilities that the items claimed for the vehicle expenses consists of 20 per cent personal component as claimed by the plaintiff.
Income included in 2001 tax return
The plaintiff's income tax return for the year ending 30 June 2001 includes an item of $13,515 gross income from the lawn mowing business. The lawn mowing business had been sold in August 2000. The plaintiff's evidence was that the $13,515 gross represented services provided in the previous income tax year of 2000, but which were billed and recovered in 2001. The plaintiff submits this should be added to the income for the year ending 30 June 2000 to establish the plaintiff's true earning capacity.
The problem with this submission is that there may be components in the gross earning figures in 2000 (which are represented in the income tax return as $35,291) which includes services provided in the previous financial year (1999) but which were billed and paid for in the year 2000. In other words it balances the income included in the 2001 taxation return.
Based upon the income tax returns 2000, I am satisfied that the plaintiff's earnings in that year are correctly represented as follows:
Net income as per tax return $19,466
Add amount paid to brother‑in‑law $ 3,200
Total $22,666
However, it must be taken into account that the asbestos business was at that time in its infancy. The plaintiff anticipated this business would expand. I believe it must also be taken into account that the plaintiff's work history indicates that he is a very industrious and conscientious worker. Whilst conducting his lawn mowing business he also supplemented his income by doing other work such as gutter cleaning and then later, started up the asbestos business. Even when severely disabled after the accident he arranged to be taken to various sites by his girlfriend so that he could attempt to quote for asbestos removal work (knowing that he would not be able to do the work himself but would require engaging labour to perform the work).
The plaintiff's counsel has submitted an alternative method of assessing the plaintiff's earning capacity at the time of the accident.
The plaintiff had previously worked as a truck driver in the meat industry.
The plaintiff called evidence from a Mr Wright who was a part‑owner of a meat packing and delivery business. His evidence was that his company investigated the possibility of employing truck drivers. The base cost was $15 to $16 per hour to employ a truck driver with 35 per cent "add on costs" to bring it up to a rate of $22 per hour. As I understand his evidence, the wage paid to the truck driver is the $15 to $16 per hour and the "add on costs" relate to other related costs (presumably such things as insurance etc). He estimated that a truck driver would work 50 to 60 hours per week. At $16 per hour for 55 hours per week, the gross salary is $880 per week or $45,760 per year.
The plaintiff also tendered into evidence the award rates for a truck driver under the Transport Workers (General Award No 10 of 1961). The base award rate in the year 2000 was $449.50.
The rate increased over the pre‑trial period as follows:
2001 ‑ $462.50 per week
2002 ‑ $480.50 per week
2003 ‑ $497.50 per week
2004 ‑ $516.50 per week
The calculations that I have mentioned above do not include a 9 per cent allowance for superannuation. Nor do the award rate figures take into account, overtime.
Taking into account all of the possible variables, I conclude that a reasonable assessment of the plaintiff's pre‑accident earning capacity is to allow an annual sum of $40,000 per annum, or $770 per week. In setting this figure I take into account that the plaintiff's asbestos business was in its infancy. If the business did not prove adequately profitable then he would have reverted to some other form of income. The evidence of Mr Wright was that in the meat industry, heavy carcasses are not generally delivered. Meat is now chopped in to boxes which are loaded onto trucks by forklifts. Accordingly, the plaintiff could have reverted to delivery work in the meat industry (as one example of his pre‑accident earning capacity).
According to the income tax returns filed, the plaintiff earned the following amounts from his business since the accident (excluding investment income):
2001$ 6,546
2002$ 2,872
2003$ 3,693
2004$ 6,291
2005$ 4,956
Total$24,358
In addition to these amounts, the plaintiff also received an amount of $10,000 for sickness benefits in 2002. This leads to a total figure of $34,358. Based upon these figures, I calculate the loss of earning from 1 July 2000 to 30 June 2005 as follows:
5 years x $40,000 $200,000
Less earned $ 34,358
Total $165,642
To allow for taxation I will reduce this by twenty percent, leaving a net amount of $132,513.60, say $132,500.
This represents an average net loss of weekly income of approximately $510 per week.
From 4 March 2000 to 30 June 2000 (17 weeks) at $510, I allow the sum of $8,670.
For the period from 1 July 2005 to 30 June 2006, I calculate the loss to be as follows:
52 x $510= $26,520
Accordingly, I allow the following allowance for past loss of earnings.
(a)From 4 March 2000 to 30 June 2000 ‑ - $ 8,670
(b)From 1 July 2000 to 30 June 2005 ‑ - $132,500
(c)From 1 July 2005 to 30 June 2006 ‑ - $ 26,520
Total- $167,690
I will allow interest on this amount as follows:
3% x 6 years x $167,690 = $ 30,184.20
(b) Future loss of earning capacity
I have assessed the plaintiff's pre-accident earning capacity to be approximately $40,000 per annum. This is equivalent to $769 per week gross or approximately $612 net per week.
I believe the correct approach in this matter is to allow for the plaintiff's residual earning capacity by calculating an appropriate amount for a total loss of earning capacity and then reduce this calculation by an appropriate percentage for the plaintiff's residual capacity and contingencies (Bowen v Tutt (1990) A Torts Rep 81-043).
The plaintiff is an industrious young person who is confident that he will be able to expand his business and make it more profitable. This is despite the fact that he suffers significant disabilities which will continue to deteriorate. Alternatively, he may seek employment outside running his own business and, on the medical reports of Mr Desmond Williams, the plaintiff is suitable for employment in a sedentary occupation. Alternatively he may be able to conduct his business in a supervisory manner only and employ sufficient labour and expand the business to make it profitable.
The plaintiff is now 30 years of age and allowing for a working life of up to the age of 65, the multiplier, using the 6 per cent discount tables, is 779. Using this multiplier, a total loss of earning capacity to the age of 65 is:
779 x $612 per week = $476,748
I believe an appropriate reduction to take into account normal contingencies and the plaintiff's residual capacity is to reduce this amount by 50 percent to $238,374.00.
Claim for gratuitous services and other domestic services
The plaintiff is entitled to recover damages for gratuitous services provided such services are required as a result of the plaintiff's injuries (see Griffiths v Kerkemeyer (1977) 139 CLR 161).
According to the plaintiff's Schedule of Operation Treatment tendered into evidence (exhibit 11), the plaintiff underwent regular operations and was in and out of hospital from the date of the accident until 4 April 2001.
The periods he was out of hospital up to 4 April 2001 were as follows:
11 April 2000 to 1 May 2000 - 19 days
10 May 2000 to 22 May 2000 - 12 days
8 July 2000 to 28 July 2000 - 20 days
2 August 2000 to 21 August 2000 - 19 days
25 August 2000 to 16 February 2001 - 175 days
17 February 2001 to 8 March 2001 - 19 days
10 March 2001 to 22 March 2001 - 12 days
Total - 276 days
The plaintiff's evidence was that whilst he was in and out of hospital receiving treatment, he received gratuitous services from his then girlfriend, Ms Thomas (until November 2000) and then immediately after from his now wife.
Up until April 2001 he was severely handicapped as his right leg was in an Ilizarov frame which prevented him from walking. His evidence was that during this period whilst he was undergoing operative treatment, he was dependent on his former girlfriend or his now wife for a period of eight hours per day.
After this period, the plaintiff was on crutches for a while but there is no reliable evidence as to how long he remained on crutches or the extent of his dependency on others for domestic services.
He had a further operation to remove a tibial pin in April 2002 but there is no evidence as to the extent he was disabled between April 2001 and April 2002.
The plaintiff's evidence was that he could not walk for a period of two years but he seemed to be confused as to when the Ilizarov frame was removed which he thought was removed in April 2002, but in fact the records show it was in April 2001.
At the present time the plaintiff says that he is unable to mow the lawn and he needs to hire a lawn-mowing contractor at $20 per hour twice a month in summer and once a month in winter.
He also complains that he is unable to do general maintenance work around the house. Also his wife does all the washing, ironing and dinner preparations.
He says that he is unable to help with the dish washing in the evening because by then his leg is swollen. He says that his parents-in-law assist with gardening around the house.
Mr Desmond Williams in his reports and oral evidence did not address the need for gratuitous services and other domestic services but some indication of the plaintiff's needs can be gauged from Mr Williams' report as to the plaintiff's working capacity.
In my view, given the level of disability, it is difficult to see why the plaintiff could not perform most domestic tasks and even some maintenance and gardening tasks. Therefore in my view, a conservative approach should be taken for the assessment of services from July 2001 onwards and in the future.
However, it must be taken into account that the plaintiff's condition will deteriorate with progressive degeneration and there will be periods of hospitalisation in the future (see my comments later in this decision concerning future medical treatment).
Based upon the above, I believe the proper assessment should be based upon the following:
1.Eight hours per day gratuitous services for the 276 days the plaintiff was not in hospital up to 22 March 2001. The appropriate rate is agreed between the parties as $16.50 per hour.
2.Four hours per day gratuitous services for a period of three months after 4 April 2001 as the plaintiff gradually made a recovery.
3.An allowance should be made for a lawn-mowing contractor for a period of four years. This takes into account the physical nature of the task and the likelihood of the plaintiff taking more time after his operative treatment to return to a capacity to perform such tasks.
4.From July 2001 a weekly allowance of $35.00 to cover gratuitous and other services required by the plaintiff.
I assess that the plaintiff's entitlement for services as follows:
1.Gratuitous services between
4 March 2000 and 22 March 2001
276 days x 8 hours per day x $16.50 per hour = $36,432
2.From 4 April 2001 for a period
of 3 months (say 90 days)
90 days x 4 hours per day x $16.50 per hour = $ 5,940
3.Lawn-mowing services for 4 years
$20 x 2 times per month x 6 months x 4 years = $ 960
$20 per month x 6 months x 4 years = $ 480
4.Gratuitous Services from July 2001 to
July 2006 – 5 years
$35 per week x 52 weeks per year x 5 years = $9,100
Total = $52,912
I calculate interest on this amount as follows:
3% x 6 years x $52,912 = $9,524.16 (say $9,524)
Future gratuitous services
The plaintiff is 30 years of age. His life expectation is 46.6 years (rounded to 46 years). Using the 6 per cent discount table, this produces a multiplier of 834. I calculate the future loss to be as follows:
834 x $35 per week = $29,190.00
I believe this should be reduced by 10 per cent for contingencies, particularly taking into account the fluid nature of domestic arrangements. This reduces the total to $26,271.
Special damages
The plaintiff's claim for past medical, pharmaceutical and travel expenses are agreed at $20,568.07.
Gymnasium/pool expenses
The plaintiff's evidence was that since the accident he has been attending a gymnasium and/or swimming pool about twice per week. This cost him about $7 per visit. His evidence was that the exercise programme was generally in the form of swimming and walking in a pool.
He lives approximately 10 kilometres away from the gymnasium and pool facilities.
He admitted that during winter he went less often.
I believe an appropriate allowance given that the first 12 months he was largely in and out of hospital, and he does slightly less in winter, is to allow $26 per week for a period of five years calculated as follows:
Weekly gymnasium/pool expense $14
Travel (40 kilometres x 30c per kilometre) $12
Total weekly expense $26
$26 per week x 5 years $6, 760
An allowance for interest should be made as follows:
5 years x 3% x $6,760 = $1,014
Total Allowance for past expense plus interest = $7,774
As to future needs, Mr Desmond Williams in his evidence stated that he recommended pool treatment more frequently than two days per week. However, the plaintiff admits to struggling to keep up with this recommended programme of two days per week, and in light of this I believe that for a future allowance I should make a calculation of no more than two days per week.
Using the allowance of $26 per week as I have calculated for past loss, I assess an allowance for future loss based upon a life expectancy of 46 years as follows:
834 x $26 per week = $21,684
However, I believe this needs to be substantially discounted for contingencies allowing for the likelihood that as he gets older he may be less inclined to maintain the exercise programme. Accordingly, I will reduce this amount for contingencies by 25 per cent which leaves a net amount of $16,263 which I will round off to $16,300.
Future medical expenses
Mr Williams gave evidence that the plaintiff's ankle will significantly increase in symptoms, and he recommended that the plaintiff be reviewed annual by an orthopaedic surgeon at a cost of $120 to $150 per consultation. However, Mr Desmond Williams indicated that reviews may not always be annually but may be stretched out on occasions for longer periods. Accordingly, I think I should take the conservative figure of $120 per year and allow this on an annual basis which leads to a weekly figure of $2.30.
In relation to consultations with a general practitioner, the plaintiff said he sees a general practitioner approximately once per month for renewal of medication prescriptions. However, the list of medical consultations by general practitioners included in the plaintiff's claim for special damages suggests that the consultations are significantly less regular than this. No medical evidence was produced to substantiate a need to attend a general practitioner once per month. On the balance I am prepared to allow a consultation every three months. This leads to an assessment of a weekly cost of $2.82 based upon a cost of each consultation of $36.60.
In relation to medication expenses, the plaintiff said he takes four Stillnox sleeping tablets per week, fourteen Panadene Forte per week, and seven Oxycontin per week. The plaintiff claims $13.83 per week for this medication. In the period from 21 March 2005 to 30 March 2006 the plaintiff's pharmaceutical expenses were $745.85 or $14.39 per week. Accordingly, I will allow the plaintiff's claim on the basis of a weekly amount of $14 per week.
In summary, I assess the plaintiff's total weekly consultation and pharmaceutical expense to be as follows:
Allowance for orthopaedic surgeon $ 2.30 per week
Allowance for general practitioner attendances $ 2.82 per week
Allowance for medication $14.00 per week
Total- $19.12 per week …(say) $19.00 per week
Again using a multiplier of 834 for a life expectancy of 46 years, I calculate an appropriate allowance to be $15,846.00.
The plaintiff concedes I should reduce the amount allowed by 20 per cent for contingencies which I believe appropriate, taking into account the advent of old age and the uncertainties that this creates. This reduces the amount to a rounded off figure of $12,650.00.
The plaintiff also seeks an allowance for future operative treatment.
Mr Williams' evidence was that the plaintiff's arthritis will increase in the knee and the plaintiff is likely to require, in about five years time, an arthroscope to look into the knee and trim and shave any rough areas. He estimated the cost will be close to $10,000. The deferred multiplier for five years is .747 and therefore an allowance of $7,470 is appropriate for this procedure.
Further, Mr Williams states that in his opinion the plaintiff's ankle will require arthroscopic treatment to trim osteophytes. He estimated the cost to be again to be about $10,000 and this was likely to be required before the knee procedure. I will allow a sum based upon a deferred multiplier for two years (0.890) which provides a total of $8,900.
Further, Mr Williams stated that in his opinion, the plaintiff is likely to require in about five to ten years, a fusion of the ankle, and again he estimated the cost to be approximately $10,000, but possibly in this case a little more expensive than the other two procedures mentioned above. I will make an allowance for this fusion operation using a deferred multiplier for seven years (.665) which leads to a total of $6,650.
In summary I allow the following for future medical treatment:
Medical consultations and pharmaceutical expenses $10,500
Knee arthroscope $7,470
Ankle arthroscope $8,900
Ankle fusion $6,650
Total$33,520
General damages
The amount for general damages is subject to the limitations created by s 3C of the Motor Vehicle (Third Party Insurance) Act 1943.
A trial Judge is required to undertake an assessment based upon the right proportion between a most extreme case and the case being assessed (see Hendrie v Ruski [2000] WASCA 249; Villasevil v Pickering (2001) 24 WAR 167).
In my view an appropriate allowance for general damages in this case is to allow 30 per cent of a most extreme case. This leads to an award of $80,400.
In summary I assess the plaintiff's entitlement to damages to be as follows:
Past loss of earnings $167,690.00
Interest on past loss of earnings $30,184.20
Future loss of earnings $238,374.00
Past gratuitous services $52,912.00
Interest on past gratuitous services $9,524.00
Future gratuitous services $29,190.00
Special damages $20,568.70
Past gymnasium/pool expenses (including interest) $7,774.00
Future gymnasium/pool expenses $16,300.00
Future operative treatment $33,000.00
General damages $80,400.00
Total$685,916.90
I reduce the plaintiff's entitlement in accordance with my findings as to the appropriate apportionment on liability (being 50 per cent) leaving a total award of $342,958.45.
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