Turner v Battistuzzi
[2000] NSWSC 1237
•21 December 2000
CITATION: TURNER v BATTISTUZZI [2000] NSWSC 1237 FILE NUMBER(S): SC NR 600063 of 1995 HEARING DATE(S): 24 May 2000 to 29 May 2000 JUDGMENT DATE: 21 December 2000 PARTIES :
Plaintiff: Raymond Edward Turner
First Defendant: Mark Battistuzzi
Second Defendant: Balranald Shire CouncilJUDGMENT OF: Hulme J at 1
COUNSEL : Plaintiff: DA Wheelahan QC with GM Radburn
First Defendant: CP Crittle
Second Defendant: DGT Nock SCSOLICITORS: Plaintiff: Parker & Kissane
First Defendant: Burridge Harris & Flynn
Second Defendant: Henry Davis YorkDECISION: Orders deferred
- 1 -IN THE SUPREME COURT
NO: 600063/95
OF NEW SOUTH WALES
COMMON LAW DIVISION
Thursday, 21 December 2000
HULME J
Raymond TURNER v Mark BATTISTUZZI
JUDGMENT
HIS HONOUR:1 On 21 February 1994 at about 6.00pm the Plaintiff was injured when a semi trailer he was driving ran into the back of another semi trailer driven by a Mr Simpson on a section of road in south-west New South Wales between Kyalite and Balranald. These two semi trailers were the last in a convoy of five carrying stock north from South Australia. In order, the other three vehicles were driven by a Mr Lewis, a Mr Clarke and a Mr Spencer.
2 The five vehicles had traversed the area of road where the accident occurred on the previous day heading to South Australia. There was nothing unusual about the road at that time. On the return journey at the scene of the accident, a dust cloud was created as the vehicles passed. The source of the dust was fill the Balranald Shire Council had placed on the shoulders of the road in the intervening period. It is clear from Council records of the work that the fill had not been watered or compacted during the course of this operation, nor had the surface been sealed in any way. By the time the trucks arrived the work was completed for the day and the only warning sign facing the trucks was one which said “Soft Shoulders” or the like.
3 There was an issue as to whether the bitumen surface had itself been the subject of work. I am not satisfied that it had been. Indeed, despite some evidence from Acting Inspector Ridley, the probabilities are it had not. I accept however that there was some significant quantity off dust on the western quarter of the bitumen surface. In places it may have been of, or the order of, the depth of the sole of a shoe, as Acting Inspector Ridley suggested.
4 Prior to trial Mr Lewis had died but the other drivers all gave evidence. Some had made statements previously and not all of the evidence and the contents of the statements are consistent. However the accounts which seem to me to be most significant are as follows
Mr Clarke5 According to Mr Clarke, at the time he approached the scene he was travelling at about 80 to 90 kilometres per hour. He saw the back of Mr Lewis’ vehicle suddenly disappear into the dust which rose up from both sides of the roadway. He saw none on the roadway itself, even after the accident. Nor was the roadway itself dug up. Almost instantaneously with his own entry into the dust his visibility decreased to nil. He “jumped on the brakes” and rapidly slowed down for a time. Then, he then tried to get going again but after a couple of seconds again braked because he had no vision. Finally, doing less than 40 kilometres an hour, he emerged from the dust on the wrong side of the road. In re-examination he said this figure of 40 might be 10 kilometres an hour out. I understand that by this evidence Mr Clarke meant that his speed might have been lower to this extent.
6 In trying to get going again, Mr Clarke was influenced by the thought that Mr Lewis, though he created the dust cloud, would not have had his vision obscured by it and would have not needed to slow down and that there was a risk that Mr Clarke would be run into by the following vehicles.
7 In evidence Mr Clarke said that although he had done off-road work before, having nil vision on bitumen is something you never encounter. He had not seen dust to this extent or of this nature - which he described as “very fine, fluffy dust, like talcum powder” - before. In a statement of 28 March 1994, Mr Clarke said that he had backed off the accelerator when first seeing forward vision cut off by the dust thrown up by the passage of Mr Lewis’ vehicle but did not brake because he did not think it would be too bad.
8 Conceding that it was hard to say, Mr Clarke’s estimates of the time and distance he was in the dust were 400 metres and 5 or 6 seconds. It is not possible to reconcile both of these figures with any conceivable driving speed.
9 In the midst of the dust, probably after he first braked, Mr Clarke received a radio call from Mr Simpson asking how bad the dust was. Mr Clarke said that he thought his reply was “slow them down” although earlier he had said that he had replied that it was bad. This call was probably over UHF radios the vehicles were equipped with. At the end of the conversation Mr Clarke dropped the microphone because of the urgent need to concentrate on his own driving. In a statement made on 3 September 1996, Mr Clarke gave a somewhat expanded version of this radio call but I am not inclined on the basis of Mr Clarke’s evidence to find more was said by Mr Clarke than “slow them down”. Mr Clarke said that there was no indication of anyone else trying to use a UHF radio at the same time, nor was he conscious of any problem with transmission. He said that he could not recall any other conversation on the radio prior to hearing about the accident.
10 In a statement he had made earlier and which became Ex 5, Mr Clarke also expressed an opinion as to the speed the Plaintiff was travelling at, at the time of the collision. Mr Clarke was not shown to have any experience or expertise in this area and I disregard this view.
11 One of the major issues which arises is the distance between various of the vehicles immediately prior to the dust cloud being encountered. On this topic Mr Clarke expressed himself as follows:-12 The accident happened on a Monday. On the following Wednesday, Mr Clarke traversed the scene of the accident twice in connection with picking up cattle which had been unloaded in consequence of the accident. He observed that there were barricades on the shoulder of the road at and well before the accident site, and “every road-work sign that you could use” and that the shoulder of the road had been sprayed with a shiny black substance which he took to be bitumen or sump oil.
In a statement made on 28 March 1994, he said that as he passed over the Kyalite Bridge, he was about 250-300 metres behind Mr Lewis. He was not certain how far behind him the following 3 vehicles were but referred to them having been held up and that the Plaintiff’s vehicle could have been 1 to 1½ kilometres behind.
In a statement made in September 1996 he said that “prior to reaching the accident scene the trucks had been spaced out by circumstances of traffic in that I was travelling between 200 and 400 yards behind Darryl (Mr Lewis) and Graham (Mr Spencer) would have been between 500 and 1,000 yards behind me. He had been held up by traffic as we passed through a small village (Kyalite) on the northern side of the NSW Victorian border, and about 2 to 5 km before the accident scene.”
In evidence he estimated his distance behind Mr Lewis at something like 150 to 200 metres but said that he did not know the distance the vehicles behind him were. In cross-examination he said that he had last seen Mr Simpson on the straight before the bridge and estimated Mr Simpson was a couple of hundred metres behind him. Later, having been taken to his earlier statements he gave as his best estimate that the first 2 vehicles behind him were between 200 and 400 metres behind and the Plaintiff maybe a kilometre behind.
Mr Spencer13 Mr Spencer said that travelling at about 95 kilometres an hour, he noticed the dust about 100 metres before he entered it. In cross-examination, Mr Spencer said that he saw the dust start but could not remember seeing any dust rising from Mr Lewis’ vehicle. He said that he did not see the dust start before Mr Clarke’s vehicle reached it.
14 On entering the dust, he could not see a thing - in his word “blindness”. He had never experienced anything like that on a road before. While trying to keep his vehicle straight he braked hard as if for an emergency stop and then was struck from behind while still in the dust cloud. He was conscious of only one jolt. He continued slowing as far as it took to pull up altogether, by which time he was out of the dust.
15 In evidence in chief Mr Spencer said that he had slowed to a speed which would have been 20 kilometres an hour although he also said that the last thing he was looking at was the dashboard. In a statement made in May 1994 Mr Spencer had said his speed had been “less than 60 kilometres per hour” so his estimate of 20 is probably on the low side.
16 Mr Spencer said that the radio being used on the Tooleybuc Road was the UHF. Before or as or after he entered the dust cloud he heard Mr Clarke say that he couldn’t see anything and to slow down. He volunteered that everybody received a warning. While in the dust cloud he heard another message over the UHF to the effect that “It’s straight.”
17 In about March 1994, a time when his memory would have been a “lot better” Mr Spencer made a statement in the course of which he said:-
“Everybody was trying to pull up and in the blinding dust nobody could see wh(ere) the other trucks were. I was nearly stopped when hit from behind.” (The “where” is partly obscured and, in part, is a matter of inference)
18 In evidence while being cross-examined on the first part of this passage he said that he did not know what the situation of the other trucks was - a proposition which accords with the probabilities. Partly because of this and partly because of the brevity of the statement, I am inclined to give it little weight. I do not find in the statement any reason to conclude that at the time of impact Mr Spencer was going any more slowly than he estimated in evidence.
19 In May 1994 Mr Spencer made another statement in the form of a series of questions and answers, parts of which were heavily relied on by the Defendant. Some reference to it is accordingly necessary. His answers to questions 19, 43 and 65 were:-
“19. It (the distance between each truck in the convoy) varied of course but mostly between two to five hundred metres apart on the open road. When there were hills and such thing, we would close up to about a truck length between us. We did this so we would not have any problems with cars and other trucks passing between us.
43. (The trucks) had bunched up in the convoy after the bridge. There was probably at least two truck lengths at the most between each truck. There were no other vehicles behind us that I could see. As Darryl Lewis’ truck went onto the shoulder of the road, Greg Clarke, who was directly behind him, said over the UHF radio, “slow down”. We started to slow down. By the time I got to this section visibility was just a couple of feet. I’d been trying to slow the truck down gradually when someone said over the UHF, it’s straight. I then concentrated on keeping the truck straight and slow down gradually at the same time to cut down on the dust. It was like a blanket over the windscreen.
65. Each truck as it travelled close to the edge of the road creates a vacuum of dust and this created a large talcum type powder. To the best of my knowledge no truck wheels came into contact with the shoulder.”
20 In evidence he said that the section of the roadway where, and leading up to where, the accident happened was an open road. He also said that the distance between him and Mr Clarke would have been further than 2 truck lengths and that in answer 43 he was not intending to refer to the distance between himself and Mr Simpson. However, although the second sentence of answer 43 is not a model of clarity, it certainly suggests that the distance between the vehicles was of the order of 2 truck lengths.
21 Mr Spencer said that he could not reconcile the statements as to Mr Lewis’ truck going onto the road shoulder.
22 In evidence given without reference to these earlier statements Mr Spencer said that at the Wakool River bridge he was within 100 or 150 metres of the vehicle in front. He said that this bridge was about 500 metres before the accident scene and it may be inferred it is the same bridge as that referred to by Mr Clarke as the Kyalite Bridge. According to the notes of a police officer who attended the scene this bridge is 600 metres south of the accident scene. I do not see that the difference matters but, in case it does, I would incline to the view that the police officer’s estimate was more reliable.
23 Asked if he had any idea how far Mr Simpson was behind him before he, Mr Spencer, went into the dust cloud, he said that he didn’t actually look but the distance was approximately that which had operated for the rest of the day - about 100 metres. He could be seen in Mr Spencer’s rear-view mirror.
24 In Exhibit E, copies of the notes of Acting Inspector Ridley taken at the scene, Mr Spencer is recorded as having said:-
“There was 5 of us travelling together and I was No. 3 in the group. There was a little roadworks sign not far from a bridge. The first truck went through and a lot of dust blew up. The 2nd truck called out the radio to slow down as he couldn’t see anything. He slowed down and I braked to stop hitting him, but the others couldn’t stop in time. We were travelling about 200 m apart before coming into the dust. Just prior to the accident we were travelling along about 90-95kph as it was a good straight road.”
Mr Simpson25 According to Mr Simpson he was travelling north on Balranald Road, approximately 2kms from Kyalite at a speed of between 90 and 95kms per hour. Approximately 500 metres after crossing the Wakool River bridge, Mr Simpson first noticed the dust. He estimated at this point it would have been a couple of hundred metres in front of him. He gave evidence of the three preceding vehicles having disappeared into the dust.
26 He described the dust at stationery roughly 20 feet high, maybe higher and covering the road. He had never previously encountered a collection of bull-dust on a bitumen road.
27 On approaching the cloud he began to slow but did not brake heavily as there was nothing to indicate to him that it was bad or anything other than just a slight patch of earth on the road. He did not notice the extent of it until Spencer disappeared.
28 On entering the cloud, at a speed he estimated of 65 kph, he was unable to see anything, describing his vision as “zero”. He could however hear the dirt particles of the dust, a sound which he described as similar to (sandblast on the front of the truck). It was then that he proceeded to brake as hard as he thought was safe in light of his desire not to “lock up” the truck.
29 According to Mr Simpson it was at a distance of roughly 50-60 metres into the dust cloud and whilst travelling at a speed of 20-25 kph that he collided with the rear of Mr Spencer’s truck. He gave evidence of seeing the truck approximately 5 metres prior to impact but of being unable to avoid colliding with it as he could not safely brake any harder.
30 In his evidence in chief, Mr Simpson indicated that next he was struck from behind by Mr Turner’s vehicle, a position he stood by in the face of cross examination on this issue. However, when pressed, he was unable to state the period of time elapsing between him hitting Mr Spencer’s vehicle and being hit by Mr Turner’s vehicle.
31 Mr Simpson next gave evidence of attending to Mr Turner during which time he noticed the dust cloud beginning to subside. Upon this occurring completely he noticed a very thick covering of bull dust on the edges of the roadway, specifically the western side. Upon further questioning he described the dust as “going over the top of your boot”.
32 Between the time of his crossing the bridge and first noticing the dust, he observed no signs indicating the presence of roadworks. However he returned to the accident scene later that same evening at which time he noticed a small sign located roughly 100 to 200 metres south of the location, sitting on the bull dust, partly covered and stating the words “soft edges”.
33 In response to questions asked of him in cross examination concerning radio contact between the drivers, Mr Simpson stated that just before entering the dust cloud, in his estimate, between 100 and 200 metres prior, he heard on the CB a voice whom he believed to be that of Mr Spencer saying “back off. I can’t see”. It was in response to this that he slowed up. In later cross examination, however, some uncertainty as to whether this warning was conveyed by the CB or the UHF emerged.
34 Furthermore, he stated that he attempted to warn Mr Turner via the UHF of the impending danger. This however, would appear inconsistent with his statement of 23 February 1994 in which he stated there was no time to provide Mr Turner such a warning.
35 On the topic of distance between vehicles, Mr Simpson gave evidence on a number of occasions to the effect that that all vehicles were travelling generally about 200 metres apart. He did say that the Plaintiff had slowed to let another truck turn off and would have been more than 200 metres behind. He said that he could not say whether the Plaintiff subsequently was a mile and a half behind.
36 In Ex E, Mr Simpson is recorded as having said, inter alia:-37 The Plaintiff was at the time an experienced driver and had driven on dirt and dusty roads. In a statement signed by his wife on his behalf on 4 May 1994, the Plaintiff said:-
“There were 5 of us travelling together about 200 mtrs apart. We came over a bridge and all of a sudden the first truck sent up a thick cloud of dust. Just then someone called out to slow down. All of a sudden I saw the rear of the float in front and hit the brakes full on, but I ran into front truck, I then got hit from behind myself.
“We had been running along about 90-95kph but just prior to the crash, I would not have been doing more than 25kph.”
The Plaintiff
As we approached an area of roadworks, I was about one mile, I would estimate, behind the truck in front of me … I heard on the UHF radio that there was roadworks ahead so I automatically started to ease off and slow down, looking for Roadworks Signs. I cannot remember seeing any roadworks Signs at all and then I saw a dust cloud ahead of me. As I entered the Dust, it became just like a Blanket and I could not see anything ahead. … only as an estimation, I would say I may have been slowing down
fromto about 40kph.38 The Plaintiff adhered to this estimate of about a mile (or a mile and a half) in evidence, explaining that he had been held up by another truck. He said he saw the dust cloud up to a mile away and that it seemed really thick. When he was about this distance away he saw Mr Simpson’s truck go into it. At some stage he also saw Mr Lewis’ truck on the far side of the dust. The surrounding area is fairly flat and the road leading away from the scene seems to have had something of a bend in it. Mr Clarke’s vehicle may also have been visible on the far side of the dust.
39 The Plaintiff said that at the time of seeing the dust he was travelling at about 90 kph. He slowed down to about 60kms per hour and was still slowing. He then said that on entering the dust - within 2-3 seconds - he realised it was far thicker than he had expected or ever experienced before. He said that visibility was then about 3 metres. He then applied his brakes hard but not so as to lock up the wheels on the prime mover or trailer or put cattle off their feet or the like. In evidence he said that he had no idea of the speed he was doing at the time of the collision. He said, and I accept, that it takes considerable skill to stop a 42½ tonne truck at 60 kph safely without doing any damage to anything within 30 to 40 metres. He acknowledged that in the circumstances as he described them on entering the dust, he would be able to stop his vehicle within 100 metres.
40 Despite what the Plaintiff apparently told his wife of 4 May 1994, and which he did not dispute, he said in evidence that he had no recollection of any warning over the radio. He did say he recalled hearing something to the effect “it’s clear ahead, it’s straight”. He said that between the time he saw the dust cloud and the accident he heard no conversation about the condition of the road
41 He did say that his CB radio was playing up but the tenor of his evidence is that his UHF was working and he could hear whatever was being said on the UHF radio (assuming 2 people were not talking at once).
42 The Plaintiff also said that he saw no indication of roadworks ahead.
43 The accident occurred. The Plaintiff’s account of it indicates he had little or no warning in the seconds immediately preceding. To what extent the Plaintiff’s application of the brakes after entering the dust cloud had slowed him down is a matter upon which there is no precise evidence. However, having regard to the fact that his prime mover was one where the cabin was above the engine rather than behind it, the weight of that part of his vehicle and trailer as was behind him and the fact that he did not suffer more serious injuries than he did leads me to the view that there is no reason to disagree with the estimate of speed contained in his statement of May 1994.44 The Traffic Collision Reports tendered were of limited use. They said, as a summary of the accident:-
Police
“Veh 1, 2, & 3 were travelling west when they came across roadworks. Dirt was covering half of lane 1 and had turned into bulldust. The vehs 1 & 2 slowed to nearly stop as they were blinded by dust.”
45 An arrow on a diagram forming part of the forms indicated the vehicles were travelling more north than west. A carbon original of the form showed vehicle 3 as the most northern, followed in turn by vehicles 1 and 2. This was the correct order according to Acting Inspector Ridley although there was a copy of what would seem to be the original of the form which showed a different order of vehicles.
46 A fuller report of the accident made by Acting Inspector Ridley on the police COPS system records that:-47 At the commencement of these Reasons, I have described the work done by the side of the road. There was also in evidence a statement by Mr Lakey, a landowner whose property was nearby. That day he had noticed the work being done and that “It was a windy day and dust from the truck loads of dirt was being blown onto the road. Each time a big truck went through this also stirred up big clouds of dust. There was no water tanker at the roadworks to keep the dust down. ... The next day after the accident a water tanker was brought from Balranald by the Shire and was used all the time until the roadworks were finished.”
“ five stock transports … were travelling along the Balranald/Tooleybug Road at a stated speed of 90-95 kph at a distance of 200 metres between each vehicle. 600 metres north of the Wakol River Bridge at Kyalite, the front vehicle encountered severe dust … The other vehicle were warned by radio to slow down … All vehicles slowed to approximately 25-30 kph, however the last three entered the dust and veh 3 slowed further when the driver of veh 1 saw that rear of the trailer, but could not stop and collided with veh 3. Veh 2 then collided with the rear of veh 2 thus crushing the cabin and trapping him …”
Mr Lakey
Witnesses48 I should say something about the witnesses I have referred to. Mr Clarke was impressive and gave me the impression of both a good memory and clear appreciation of what he was saying and had said. The Plaintiff impressed me as genuine and not given to exaggeration in any respect.
49 There was nothing in Mr Simpson’s demeanour to cause me to disbelieve him although he did not impress me as much as did Mr Clarke and the Plaintiff. Mr Spencer was the least impressive of the 4 but, again, there was nothing in his demeanour which caused me any positive doubts.50 There were tendered in evidence 2 expert reports - one by a Grant Johnston, an engineer with Jamieson Foley and Associates, the other by a Mr Geoff Moir, also an engineer. I found the first of these of limited use. The second was, apart from one matter, utterly useless. Much of the information contained within it and which Mr Moir no doubt had supplied to him, particularly as to what the Council did, was shown to be wrong but that aside, the report clearly reads as if compiled by an advocate and goes outside Mr Moir’s expertise. Statements such as “the driver who organised and controlled the convoy had a personal responsibility, firstly to instruct the individual drivers … and then to exercise continuing control …” illustrate the latter proposition and, given that there was no evidence that there was such a driver, also the first. Statements such as “The shoulders were also noted to be in a sound state and not abnormally conducive to untoward dust generation by heavy trucks given normal usage of the carriageway” seems to me to lack any foundation and to be demonstrably wrong. There was not one witness who was at the scene, or any other evidence, that provides a tittle of support for the proposition.
Expert Opinion
The Issues51 Mr Turner originally sued a Mr Battistuzi and the Balranald Shire Council in negligence. The Plaintiff alleged that the former had stopped the vehicle into which the Plaintiff ran and that the Council had performed the roadworks to which I have referred. At the commencement of the trial before me, the Plaintiff discontinued against Mr Battistuzi.
52 The Council cross-claimed against Mr Spencer and Mr Simpson and the owners of the vehicles driven by them, viz Mr Battistuzzi and Barcod Pty Limited. Leave to file an amended cross-claim was given during the course of the trial - see transcript page 48. Defences to this cross-claim were envisaged but none have caught up with the file apart from 2 filed on behalf of Messrs Spencer and Simpson dated October 1997. However the trial proceeded as if they had been.
Conclusion53 The recitation of the actions of the Balranald Shire Council, the dusty condition in which it left the work it had done, the obvious nature of the hazard thereby created - seen by Mr Lakey and which must have been seen by whoever on the Council’s behalf was in charge of the work - and the absence of appropriate warning signs can leave no doubt but that the Council was negligent. Much, if not all, of this conduct was causative of the damage the Plaintiff suffered.
54 So far as the drivers are concerned, it is not possible to reconcile all of the evidence, indeed, in relation to some matters even all of the evidence of individual witnesses. As a general proposition I think statements made earlier are likely to be more reliable than those made later and drivers’ estimates of distances in front are more likely to be accurate than estimates of distances behind. However, obviously other factors have to be taken into account. Furthermore, one must bear in mind that some of the drivers’ evidence of distances and times are almost certainly only estimates, and commonly of matters occurring during a traumatic event.
55 So far as Mr Spencer is concerned, the probability is that, before any occasion arose to slow down because of the dust, he was travelling about 200 metres behind Mr Clarke. That is his estimate recorded in Exhibit E. Clearly the dust was very thick and Mr Spencer would thus have seen Mr Clarke’s vehicle enveloped in it about this distance away. Reasonable care in my view requires that, as a general proposition, drivers drive at a speed such that they can pull up within the limits of visibility. There is nothing to suggest that proposition should not apply here. The sighting of the dust cloud and particularly Mr Clarke’ vehicle disappearing into it should have led Mr Spencer to slow down substantially. According to Mr Moir’s report stopping distance in the case of gentle deceleration for the vehicles was 120-130 metres so there was in fact time to slow down to a speed which conformed with what reasonable care required and to do so in full view of Mr Simpson behind him. Mr Spencer’s failure to do so contributed to the collision and the Plaintiff’s damage.
56 Similar comments may be made so far as Mr Simpson is concerned. Again I think the probable distance between him and the truck in front was about 200 metres. He said he saw the preceding vehicle disappear into the dust and first saw the latter a couple of hundred metres away.
57 The visibility of the dust cloud to the Plaintiff extended over a far longer distance but because 200 metres was more than sufficient to take any necessary action, I do not see that the difference in visibility matters. His speed also was excessive at the time he entered the dust.
58 As between these three drivers, it seems to me that each was as responsible as the other for the accident. I appreciate that the test so far as the Plaintiff is concerned relates to care for his own safety whereas the liability of the others rests in breach of a duty to the Plaintiff. However, it does not seem to me that this provides an adequate ground for not treating them all as equally responsible. Each acknowledged having a radio warning in some form or other and I think the better view is that it was the one given by Mr Clarke. Mr Spencer and the Plaintiff acknowledge also hearing a radio broadcast to the effect “it’s straight” I would infer Mr Simpson heard it too and that the source was Mr Lewis.
59 On the other hand, I regard the responsibility of the Council as far higher than that of the three drivers to whom I have referred. It created the problem which, furthermore, must have been obvious to its representatives or employees carrying out the road work. Never having experienced such a problem on bitumen roads before, the conduct of the three drivers in not recognising the extent of the hazard is to some degree understandable even if, as I have indicated, there was negligence or contributory negligence. In these circumstances a proper apportionment of responsibility for the accident and damage suffered by Plaintiff is 15% to each of the Plaintiff and Messrs Spencer and Simpson and 55% to the Council.
Damages60 The Plaintiff was born on 3 August 1962. he left school at the age of 14. He described his performance at school as “average”. He then commenced work pushing trolleys part time and next working as a junior labourer in a meat works for about 6 years. During this time he had a cartilage removed from his left knee. He said that after a further operation in about 1984 his knee returned to normal. He married in 1986 and has 2 children dependant on him.
61 After leaving the meat works, he seems to have been in constant employment - as a farm hand, then as a fibreglasser, plastic moulder and welder. In connection with the latter occupation he had to attend a TAFE course for some 2 years and then a second TAFE course.
62 In late 1987 he commenced working for Knights Transport as a semi-trailer driver, carting animals long distances and travelling some 5000 km per week. He remained in that occupation for 5 years until a woman drove under a truck he was driving. After a 3 to 4 months break during which he worked in his employer’s workshop, he joined another firm for about a year and then in mid 1993 resumed employment with Knights Transport, remaining there until the accident. At that time his health was fine. While he would have liked to slow down, he was at that time driving some 8000 kms per week. his base income was about $330 to $350 per week, but with overtime and allowances he was taking home $650 to 700 each week.
63 As a result of the accident, the Plaintiff was trapped in his truck for some 2 hours until he could be released. He had a broken left femur, obvious by reason of angulation of his thigh. His right knee was laid open. His left wrist was dislocated and there were lacerations to, inter alia, his right upper arm and tendons of his right wrist and one of his eyes. He suffered external and other less serious injuries.
64 The Plaintiff remained conscious during this time. He described how he felt as “pretty second-hand”. He was taken by ambulance about 80 kms to Swan Hill Hospital - a journey that felt “very long”. The Plaintiff was not given to exaggeration! At the hospital his wounds were dressed but by this time the morphine he had had was working fairly well. He was then moved to hospital in Melbourne where he spent some 10 days in intensive care.
65 He had a variety of operative procedures. On about 11 March, still not mobile he was transferred to Lismore and Casino hospitals. By the end of March the Plaintiff could walk with a walking frame. He still had difficulties. “Both wrists were still pretty well out of condition then. I had a Zimmerman splint on both legs, which meant me legs were stiff. I couldn’t bend either leg. had a great deal of pain to get around.” (sic)
66 After about 3 weeks he graduated to crutches for some 6 weeks, then to 2 walking sticks and finally to one. He was released from hospital on or about 19 April 1994.
67 Each of the Plaintiff’s 4 limbs was the subject of physiotherapy although pain seeks to have limited this at times. He acquired a “golden staph” infection in hospital.
68 After his release he attended at an outpatients department every day until the end of July for physiotherapy. This was either at Casino or St Vincent’s Hospitals in Lismore, where hydrotherapy was available. On medical advice he also attended a gymnasium regularly. An example of his treatment regime is that in September 1994 he had physiotherapy on 8 occasions, hydrotherapy on 5, visited his GP on 3 occasions, the gymnasium 9 times and a chiropractor once. From mid 1995, the formal gymnasium and physiotherapy sessions dropped off and were replaced by a regime at home established with the advice of the gym instructor.
69 The attendance on the chiropractor was to relieve what the Plaintiff described as a slight problem with his neck. He was limited in his movement of it and suffered headaches virtually all of the time until discharge from Casino Hospital and then for 4 or 5 hours a day until he attended on the chiropractor. Now he suffers minor versions of these about once a week and major ones about every 1½ - 2 months although he still needs to visit the chiropractor about every 3 months. This evidence was given. There was then an objection that it was outside the particulars. Counsel were to discuss the matter but there was no reference to the results of the discussion or mention of the topic in address. In the totality of the case, it is a small issue but as the evidence was given originally without objection, I think I should take it into account.
70 So far as the Plaintiff’s left leg is concerned, a pin was inserted and the femur has mended. However the leg has continued to give the Plaintiff a great deal of pain. I note that the report of Dr Power is somewhat inconsistent with this view but I accept the Plaintiff’s evidence.
71 The Plaintiff’s right patella was removed but problems have continued. In mid 1996 it was treated while the Plaintiff was a day patient in St Vincent’s hospital The knee is sensitive although not as much so as previously. The Plaintiff cannot kneel. The knee is a problem when walking or sitting for an hour and is uncomfortable at night. In March 2000, Dr Brazel noted there were no degenerative changes.
72 A fractured left scaphoid bone in his hand had a screw inserted. Flexion in his left wrist is limited to about 15 to 20 degrees and the wrist jams in activities such as opening a jar. Dr Power said there may be further deterioration and this has since been observed radiologically.
73 Severed tendons in his right hand were repaired. Right wrist extension is severely limited and flexion moderately so. His index and middle fingers flex incompletely. Holding a pen for long fatigues the wrist and in March 200 it was tender to palpitation.
74 Other injuries and treatment of a more minor nature included the following. Damage to the Plaintiff’s internal organs, particularly his spleen and one of his kidneys healed itself. A wound at the back of his right calf was debrided. The calf is tight now. There was injury to the Plaintiff’s right toe which is restricted in movement. The Plaintiff has been left with numerous scars although he tries not to worry about them greatly.
75 It should probably be recorded that neither the Defendant nor Cross-Defendant sought to tender any medical reports. There was evidence that the Plaintiff had seen 2 doctors at the request of the Defendant.
76 The Plaintiff agrees that he has been able to look after himself around the house although it is clear that his evidence in this regard is limited to only some of the time since his accident. Furthermore, he has to sit to pull on long trousers and sometimes to pull on underpants. Shoes, socks and shirts are sometimes difficult. He cannot step off a kerb in a normal fashion and has difficulties with uneven ground. He can handle stairs with difficulty though looks for handrails. After writing for 20 minutes he has problems with his hand.
77 He cannot run. He played a little golf before the accident but cannot play now because of the jarring of the club and in any event is limited to walking about 5 holes. Lawn bowls is his limit so far as sport is concerned. Walking on the beach is difficult. He performs some lawn mowing and gardening but is quite symptomatic on the following day.
78 I turn to the topic of employment. In 1996 the Plaintiff undertook some classes in welding, receiving a certificate for achieving what he did despite his difficulties. The result of the course was that, if he could have found a welding firm, he would have been classified as a second year apprentice. He sought a job unsuccessfully, most firms telling him to return when he could obtain a 100% clearance (I infer, a fitness clearance). He did however find employment as a light storeman with the TAFE. At its highest, this involved the Plaintiff in working 3 hours on Tuesday nights and 4 hours on Thursday nights. There was supposed to be a 15 minute break during the evening but sometimes this extended to half an hour. The Plaintiff would be very tired on the days following the work even though on the days when he had to work, he would take a rest during the afternoon beforehand. The work stopped due to funding cut-backs. Since then the Plaintiff has done some light welding work - say making gates for a house or carport. There has been one job every 2 or 3 months, and the longest day the Plaintiff has put in has been 4 hours. It took him 4 weeks to make a set of gates. He also tried to fit in a Computer Aided drafting course to improve his employment prospects. However he had to give this up because of the strain when he was doing the storeman’s job also. One of the medical reports records that he has been doing some 2 hours a day voluntary work.
79 In evidence the Plaintiff agreed with the proposition that he was confident that at some stage he would get back to work in some form. However in re-examination he agreed that he had never had a lighter job than the one he had at TAFE or one with shorter hours or with the breaks that job did. He agrees that he can drive a car although he needs a break to walk around every hour or hour and a half. He agreed that, subject to this qualification, he “might be able to do a shift occasionally if (he) could get a taxi driver’s licence”. His evidence as to the nature of fork-lift driving persuades me that he could not perform any work likely to be available in fork-lift driving. Because of the heights of cabs, I am satisfied that he can no longer work as a truck driver. Indeed, I think that the mobility required in many aspects of truck driving, e.g. climbing up on the tray or trailer to move gates or tarpaulins, would exclude him from the vast majority of such jobs. Drs Power and Brazel agree in substance with this assessment. The Plaintiff’s lack of mobility also excludes courier work.
80 The Plaintiff said that he was willing to try bench work, something that Dr Power said he should be able to do. However, the problems he has with flexibility in his hands would militate against this and I think the chances of him finding a job in this area which he could do are virtually nil.
Quantification
81 There was very limited dispute so far as general damages are concerned. On behalf of the Plaintiff Mr Wheelahan contended that general damages should be assessed in the range of $125,000 to $160,000. Mr Nock SC for the Council submitted they should fall within the range of $120,000- 130,000. In my view they should be assessed in the sum of $150,000.
82 The Plaintiff claimed future economic loss on the assumption that he had no residual earning capacity at the rate of $750 gross per week. The only issue taken on this claim was whether the Plaintiff had any such capacity. In fact the evidence of Messrs Simpson, Clarke and Spencer as to their current earnings, together with Exhibits J and L more than support the view that, but for his accident the Plaintiff would have earned the amount claimed.
83 Dr Brazel was of the view that the Plaintiff probably could obtain some employment in a light unskilled or semi-skilled type area. However the Plaintiff’s evidence as to his working at TAFE persuades me that, in practical terms he has virtually no residual earning capacity likely to be remunerative in the open labour market. Because of his motivation, I expect that, nevertheless, he will do something remunerative, even if it is similar to his post accident welding work to which I have referred. However, I would not regard this as likely to be productive of more than a very limited income. While the Plaintiff can presumably improve on his rating of a second year apprentice, his physical disabilities will limit his efficiency substantially. He was managing 7 hours work a week at TAFE, so it is perhaps not unreasonable to expect that could manage 8 hours a week at that sort of job. However, when one discounts his efficiency, and recognises both the difficulty of operating a business at that level and the possibility that no-employer would be interested, it seems to me that any allowance for the such work capacity as the Plaintiff has should be small.
84 Furthermore, given the symptoms of and disabilities consequent upon, the Plaintiff’s leg injuries I do not believe that taxi driving, except as an occasional activity is a viable option. In that regard, but without forgetting that the onus is on the Plaintiff, the Defendants did not take the matter further in evidence than the passage I have quoted above. Neither do they call evidence that such activity was within the Plaintiff’s capabilities. Nor do I think that the Plaintiff will be able to work for as long as he otherwise would have. Taking all of these matters into account, it seems to me that a fair result can be arrived at by discounting the Plaintiff’s notional weekly earnings by 10% for the whole period covered by the calculation.
85 Given my assessment of the Plaintiff, I think the probability is he would have worked until 65. There should be subtracted the usual 15% for vicissitudes
86 Past economic loss in the sum of $157,186 was claimed. There was no dispute concerning the claim. Although the figure of $660.88 per week gross used in the calculation for the period 1/7/94 to 22/5/00 may have been derived by using 25 weeks rather than somewhere between 25 and 26 weeks to divide the income stated in the group certificate relied on in the calculations and thus be somewhat high for the period to 27/12/94, given other evidence as to comparable earnings and judicial notice of the trend of rates of pay over the period July 1994 to May 2000, I am satisfied that the base figures used in the calculation of the claim are established.
87 Loss of past superannuation entitlements in the amount of $10,667.75 is claimed. Subject to the remarks in the immediately preceding paragraph, I am again satisfied of the wages figure on which the calculation of this loss was made. There was again no challenge to the claim.
88 The claim of $49,822.50 for loss of future superannuation entitlements is affected by my conclusion that the Plaintiff’s future earning capacity is not nil. I am satisfied of the base wage rate on which the calculation proceeded. In other respects, there was no challenge to the claim. A re-calculation is needed.
89 Similar comments apply in respect of the claim for $7,260 for loss of long service leave entitlement.
90 Out-of-pocket expenses to the date of trial were agreed in the sum of $65,793.
91 Future medical expenses were claimed in the sum of $20,444. The likely need for most of these expenses was supported by the evidence of Dr Brazel in a report of 2 February 1999. As to a sum of $2,500 for removal of the left femoral nail, Dr Brazel referred to this as only a possibility but given the absence of any issue concerning the claim and that Dr Brazel in his March 2000 report raised the possibility of operative treatment of the Plaintiff’s right first toe, I am disposed to allow the claim in full.
92 The Fox v Wood component was claimed in the in the sum of $27,222.80. Again there was no challenge to it.
93 A claim under Griffiths v Kirkemeyer for past gratuitous services was agreed in the sum of $34,965.
Cross Claim94 I have already indicated that I regard the Cross-Defendant(s) as partly responsible for the collision and the damage to the Plaintiff which ensued.
95 It is agreed that any damages assessed in respect of the Cross-claim must be assessed having regard to the Motor Accident’s Act. Clearly the Plaintiff meets the thresholds in s79 of that Act applying at the time of his accident. I would assess the severity of his non-economic loss as 30% of a most extreme case. That figure is consistent with the sum of $150,000 I have assessed for general damages, having regard to what I regard as the appropriate figure for general damages at common law for a worst case. In arriving at both figures, I am influenced by the fact that, although the Plaintiff’s injuries were serious and have had a serious impact on his life, in both of these respects they fall a long, long way short of quadriplegia or cases of both serious brain and other physical damage.
96 Based on figures that were common ground, 30% represents a sum of $81,900.
97 A further impact of the Motor Accidents Act is that no interest is payable on past damages assessed under Griffiths v Kirkemeyer.
98 Some of the above figures will have changed since the case was heard. It may be that a change in one may have been matched by a corresponding but opposite change in another. The figures for past and future earnings are examples where this may have occurred. However, before formally entering judgement it is appropriate that the parties have the opportunity of checking such matters. Accordingly, after publishing these reasons I will stand the matter over for such period as the parties may desire to enable these matters to be considered and hopefully agreed.
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