V MacMorran
[1989] TASSC 70
•7 December 1989
Serial No 70/1989
List "A"
CITATION: MacMorran v MacMorran [1989] TASSC 70; A70/1989
PARTIES: MacMORRAN
v
MacMORRAN
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 735/1987
DELIVERED ON: 7 December 1989
JUDGMENT OF: Neasey J
Judgment Number: A70/1989
Number of paragraphs: 16
Serial No 70/1989
List "A"
File No 735/1989
MacMORRAN v MacMORRAN
REASONS FOR JUDGMENT NEASEY J
7 December 1989
The parties in this negligence action are husband and wife. The plaintiff husband had been teaching his wife to drive their motor car over a period of some months. The plaintiff was 68 years old at the time of the accident on 13 March 1985, and his wife, the defendant, a year or so younger. The defendant was driving their small Ford Escort car at the time. They had been out on an instructional drive, and had just returned to their home in the Hobart suburb of Kingston. The defendant had driven the car into their driveway at about six or seven kilometres per hour, in a quite normal way, but when she should have stopped the vehicle in the driveway, it suddenly shot forward and accelerated and travelled a distance of 11 or 12 metres, crashing into the bedroom wall which was at the end of the drive. This impact caused considerable damage to the wall of the house, and to the car, and caused substantial injury to the plaintiff husband. The plaintiff was called to give evidence, but the defendant was not. The plaintiff's assumption was, and it was virtually common ground between the parties, that it was the obvious explanation for the happening of the accident that the defendant must have mistakenly depressed the accelerator pedal instead of the brake pedal, and thus caused the car to shoot forward when it should have stopped. The plaintiff, whose evidence I accept as being honest and objective, estimated the speed of the vehicle when it crashed into the wall at between 25 and 30 kilometres per hour.
The plaintiff is a retired British army officer. He joined the army in 1934 at the age of 18 as a signalman, which is equivalent to private, and retired as a major in 1971. He served in France, attached to an artillery unit, from D+1 until the end of the war, and after the war in Germany, and in a variety of postings up to the time of retirement. One of his army appointments was as mechanical transport officer, during which time he had acquired considerable experience in supervising motor vehicle driving instruction, and participating in the instruction sometimes himself. I accept that he had acquired considerable skill and experience in motor vehicle driving instruction.
Some time after retirement he and his wife came to live at Kingston. His wife decided to learn to drive a motor car, so as to be independent in that way, and he undertook to instruct her. At the time of the accident she held the fourth of a series of learner's driving licences, having renewed them at the end of each three months. The plaintiff had been giving her driving instruction over a period of some 10 or 11 months at the time of the accident, but they had been taking the matter slowly, going out for a driving lesson when weather conditions were right and they felt like doing so. The plaintiff estimated that he had given the defendant between 30 and 50 driving lessons before the accident. He had adopted a fairly structured course of driving instruction with his wife, with the object of teaching her slowly and gradually building up her confidence. He started her off in a large parking area at a Kingston supermarket, and then began taking her around the quieter roads in the Kingston area. They had progressed to going out on the open road and to nearby districts, but had not reached the stage where he had taken her driving in city traffic, though he expected to progress to that shortly. His intention was to finish off her driving course by putting her in the hands of a professional driving instructor for a period, after which she would apply for her full licence. They had many times entered their own driveway when the defendant was driving, and she had never had any difficulty in doing that and in stopping in the normal way. She had had no problems in handling the car, and had proved an excellent pupil, he thought. He had taught her emergency stops on a number of occasions, and she had handled them perfectly well. They had never had an unscheduled emergency or any other unexpected event during her driving practices which had caused difficulty.
On the day in question, they had driven to a neighbouring district where their daughter lived. I infer that the defendant had driven on the whole of the journey, although the evidence is not specific about that; but at any rate she was driving on the return journey and turned into the driveway in a normal manner. They were well into the drive when the car suddenly shot forward and accelerated, and as earlier mentioned, crashed into the wall. The plaintiff had no time to take any independent action. The engine of the car was revving as it shot forward, and it appeared to him that it was on full throttle. He remembers little after they hit the wall, but it turned out that his artificial hip joint, which had been inserted very successfully in 1971, was badly dislocated as a result of the impact. He claims in the action that the accident was caused by the defendant's negligence in applying the accelerator instead of the brake, and failing to apply the brake to avoid crashing into the wall. The defendant denies any negligence, pleads volenti non fit injuria; and in addition pleads contributory negligence, alleging that at the time of the accident the plaintiff was not wearing a seat belt, and other particulars of negligence, including failure to adequately instruct or to warn.
At this stage I should examine the question of the nature of the duty of care, if any, owed by the defendant to the plaintiff at the relevant time. Fortunately, this area has been canvassed comprehensively by the High Court of Australia in Cook v Cook (1986) 68 ALR 353. It is clear in the first place that a relevant duty of care will arise under the law of negligence only where the requirement of a relationship proximity between the plaintiff and the defendant is satisfied – per Mason, Wilson, Deane and Dawson JJ in their joint judgment in Cook v Cook, ibid., at p557. There is no doubt that the relevant proximity relationship existed in the present case. As Gibbs CJ said in Sutherland Shire Council v Heyman (1985) 59 ALJR 564; (1985) 60 ALR 1, at p14:–
"If a relationship of neighbourhood or proximity is found to exist, then it will be necessary to proceed to the second stage of the inquiry. … None of this process will be necessary if the facts fall into a category which has already been recognised by the authorities as attracting a duty of care, the scope of which is settled – for example, no trial judge need inquire for himself whether one motorist on the highway owes a duty to another to avoid causing injury to the person or property of the latter, or what is the scope of that duty."
So, in a case in which the person in a motor vehicle sues the driver of that vehicle, it is ordinarily perfectly clear on the authorities that the driver owes a duty of care to the passenger, and, unless there are exceptional circumstances, the scope of that duty of care is settled. Thus, in Cook v Cook (supra) at p357, their Honours in the joint judgment say:–
"In the ordinary action in negligence where the plaintiff is a passenger who has been injured in a motor vehicle driven by the defendant, the relevant relationship of proximity is simply that of driver and passenger and the category of case is the general one which reflects that relationship. In that general category of case, the standard of care required, being objective and impersonal, is not modified or extended by the personal driving history, ability or idiosyncrasy of the particular driver. It is the degree of care and skill which could reasonably be expected of an experienced and competent driver. That is not, however, to say that, regardless of the circumstances of the particular case, the relationship between a driver and a passenger is, for the purposes of the law of negligence, a completely standardised one or that the content of the duty of care where that general relationship exists is necessarily immutable. While the personal skill or characteristics of the individual driver are not directly relevant to a determination of the content or standard of the duty of care owed to a passenger, special and exceptional facts may so transform the relationship between driver and passenger that it would be unreal to regard the relevant relationship as being simply the ordinary one of driver and passenger and unreasonable to measure the standard of skill and care required of the driver by reference to the skill and care that are reasonably to be expected of an experienced and competent driver of that kind of vehicle."
Their Honours say further (ibid, at p358):–
"Where such special and exceptional facts transform the relevant relationship, questions of the requisite proximity of relationship and of the standard of any duty of care must be determined by reference to the more precisely confined category into which the particular relationship falls. Assuming that the requirement of proximity remains satisfied, the standard of care, while remaining an objective one, must be adjusted to the exigencies of the relevant relationship in that it will be the degree of care and skill reasonably to be expected of the hypothetical reasonable person of the law of negligence projected into that more precisely confined category of case. The point may be illustrated by reference to the abovementioned example of a professional driving instructor and a pupil having his first lesson. In relation to other users of the highway, the duty of care of both instructor and pupil will ordinarily fall to be measured by the same objective standard since the relevant relationship will be the ordinary one between a driver and another user of the highway. As between themselves, however, it would be to state a half–truth to say that the relationship was, if the pupil was driving, that of driver and passenger. The special circumstances of such a case remove the relationship into a distinct category or class which, while possessing the requisite degree of proximity, could not rationally be seen as giving rise to a duty to drive with the skill reasonably to be expected of a competent and experienced driver. Indeed, it is the very absence of that skill which lies at the heart of the special relationship between the driving instructor and his pupil. In such a case, the standard of care which arises from the relationship of pupil and instructor is that which is reasonably to be expected of an unqualified and inexperienced driver in the circumstances in which the pupil is placed. The standard of care remains an objective one. It is, however, adjusted to fit the special relationship under which it arises."
After further discussion of the principles involved, their Honours arrive at this proposition (ibid, at pp360–361):–
"It is only when special and exceptional circumstances clearly transform the relationship between a particular driver and a particular passenger into a special or different class or category of relationship that the case will be one in which the duty of care owed by the particular driver to the particular passenger will be either expanded or confined by reference to the objective standard of skill or care which is reasonably to be expected of a driver to a passenger in the category of a case where that special or different relationship exists. The onus of establishing the existence of facts giving rise to a relationship of such a special or different category under which it would be unreasonable to fix the duty of care owed by the driver by reference to the standard of skill and care reasonably to be expected of a qualified and competent driver will lie on the party who asserts it."
Dealing with the facts of the case in question, their Honours said (p.361):–
"In these circumstances, the appellant's known incompetence and inexperience as a driver was a controlling element of the relationship of proximity between the parties. That special element of the relationship took it out of the ordinary relationship between a driver and passenger into a special category of relationship between a driver who is known to be quite unskilled and inexperienced and a passenger who has voluntarily undertaken to supervise his or her driving efforts. The standard of the duty of care which arose from that distinct relationship of proximity was that which could reasonably be expected of an unqualified and inexperienced driver (but with some knowledge of the controls of a motor vehicle) in the situation in which the appellant was placed when the respondent instructed her to turn left into Eton Street. Actions which are fairly to be seen as the result of that inexperience and lack of qualification rather than as having been caused by superimposed or independent carelessness did not, of themselves, constitute a breach of the duty of care which the appellant owed to the respondent."
In the present case, there is no doubt the requisite proximity relationship existed, and no doubt also that special and exceptional circumstances existed which put the relationship into a different category from that of ordinary driver and passenger, where the driver would be taken to owe to the passenger the standard of skill and care reasonably to be expected of a qualified and competent driver. The defendant driver was a learner–driver, but by no means a learner in the first or early stages of her instruction, when skill and competence might well have been at a minimum. This defendant at the time the accident occurred was a reasonably experienced learner–driver who had had many lessons, but had not yet progressed to the stage where her instructor husband was prepared, according to the slow projected pace of his course of instruction, to have her drive in city traffic or perform regularly the more complex type of manoeuvre such as starting on a steep hill and the like. She was at the stage where she was shortly to commence that type of instruction. Yet according to the evidence which I accept, the defendant's driving conduct had never caused any emergency or safety concerns in the driver, and she must have performed the more ordinary manoeuvres of stopping and starting a great many times during the course of her 30–50 lessons, to the extent that such simple manoeuvres should have been, and apparently were apart from this accident, entirely routine for her. The standard of the duty of care which the defendant owed to the plaintiff was that which could be reasonably expected, objectively, of an unqualified but reasonably experienced learner driver who should have been competent to perform all routine driving movements, including stopping the vehicle from a slow place. I find that the accident occurred when the defendant depressed the accelerator instead of the brake pedal, and then, as I infer, when the car accelerated forward instead of stopping, lost her composure and continued to depress the accelerator instead of lifting her foot or transferring it to the foot brake.
The question is whether such actions "are fairly to be seen as the result of that inexperience and lack of qualification rather than as having been caused by superimposed or independent carelessness". In other words, should her actions be seen as those which might be anticipated from a driver with her degrees of experience and inexperience, according to the objective standard of a reasonable person with similar skills or lack of them, or should it be inferred that her actions were the result of superimposed negligence. In my opinion, the latter conclusion should be drawn on the balance of probabilities. The defendant was about to perform or performing a manoeuvre which she had carried out many times before, and should have been entirely competent to perform. The sudden and unexpected acceleration of the vehicle, and its continued acceleration, lead me to infer that for some unknown reason the defendant allowed her mind to wander or be distracted from the task in hand, to the extent that she displayed blatant carelessness by depressing the accelerator instead of the brake pedal, and holding it depressed. I find she was guilty of negligence.
The plea of volenti non fit injuria was not persisted with, and in any event could not be sustained. I find that the plaintiff was not guilty of contributory negligence, but on the contrary displayed a substantial degree of care and skill in carrying out his driving instruction of the defendant in all the relevant circumstances. My view as to the degree of risk he took as the driving instructor is that he carried out the instruction at all relevant times so that such degree of risk as there was in driving with a learner–driver was well within the learner's capacity to cope with without danger to the instructor or other road users; and that he increased the difficulty of the driving experience gradually, consistent with his view of the pupil's ability to cope with the increased difficulty. This in my view is how a driving instructor acting with reasonable care and skill would ordinarily proceed. As to the alleged failure to wear a seat belt, I accept the plaintiff's evidence that he was in fact wearing the seat belt. The defendant relied upon a form of application for benefits from the Motor Accidents Insurance Board as evidence that he was not wearing the belt. The form is dated 20 March 1985, which is a week after the accident, and it has an answer to the question, "Were you wearing a seat belt?", "Not known". The form is filled in by a hand other than the plaintiff's, and his signature is an almost indecipherable scrawl. The plaintiff said that he was not fully aware of his surroundings until several days after the accident. He said that he does not remember the form being filled out, and that the signature is a very poor version of his ordinary signature. He was also in substantial intermittent pain for many days after the accident, and I have no difficulty in inferring that at the time the form was filled in he would not have been in a condition to pay clear minded attention to a question whether he was wearing a seat belt at the time of the accident. I find therefore that the defendant was negligent and is liable to the plaintiff, and there was no contributory negligence.
I pass to consider the question of damages. The plaintiff had begun to experience pain caused by arthritis in his right hip from about 1964. He had the hip replacement operation in 1977 in England, and says "It was 100% successful and it was like giving me a new lease of life. I was free of pain for the first time in 13 years." His evidence was that after the operation he was free from pain and his physical activities appropriate to a person of his age were normal. That remained the situation until the accident occurred. When the impact occurred and the car hit the wall, he remembers trying to open his driver's side door by pushing with his foot, opening it, and getting one foot on the ground. After that he remembers nothing more until he became partly conscious again when being taken to hospital in an ambulance. He remembers someone picking pieces of glass out of the left side of his cheek and jaw.
The plaintiff believes he was unconscious in hospital for a long time, but does not know how long. The hospital records state in substance that on admission on 13 March 1985 he had pain in the left leg, suffered a sudden drop of blood pressure, was sweaty, shocked, and had blood loss from a laceration over the left cheek and tender swelling in the right thigh. Examination showed that there was a comminuted fracture of the upper end of the right femur with loosening of the shaft of the total hip replacement prosthesis on the right side. There was an oblique fracture of the upper third of the shaft and greater trochanter, the distal fragment being displaced. The shaft of the hip prosthesis retained relationship to the upper fragment. The hip replacement prosthesis was apparently replaced in its normal situation by surgical treatment, with the femoral fragments maintained in position by three circumferential wires and wiring of the greater trochanter, by 29 March 1985. By 1 July 1985 the hip prosthesis was said to be in a satisfactory position.
As to pain, discomfort and inconvenience and the like, the hospital records show, or it can be inferred from them, that the plaintiff was given drugs for pain relief on most days for upwards of two months after the accident. By 25 May he was said to be ambulating with assistance on a frame. He was discharged to his home on 5 June 1985, nearly three months after admission.
Outpatient reports show that the plaintiff was making satisfactory progress under orthopaedic surgeon Mr Turner's supervision on 1 July 1985, but at that time had poor movements and hip and knee had probably no greater than 40o flexion. By 7 October 1985, Mr Turner noted the leg to be "satisfactory", with 90o flexion at the knee and about 80o flexion at the hip. Physiotherapy was continuing at that stage. He was referred by Mr Turner to the Douglas Parker Rehabilitation Centre, and was admitted as a patient there on 3 June 1985. He continued physiotherapy at that institution thereafter.
Mr Turner's written report dated 22 April 1986 says that he had various complaints at that time, including being unable to walk far because his back became sore. He was unable to garden or mow the lawn or bend down, got cramp at night, could not wash or dry his feet and had to use a spinal cushion when sitting. Examination showed that he had about 1 centimetre of right leg shortening. He had flexion at the right hip from 20–70o , and rotation of 20o . X–rays showed quite marked degenerative changes throughout the lumbar spine with a slight spondylolisthesis of L4 on L5. The right total hip replacement appeared satisfactory, and the femoral fracture had soundly united. The opinion and prognosis reported was:–
"This man has some residual disability in his right hip as a result of his motor vehicle accident. He had limited hip movements due mainly to the prolonged period of immobilisation that followed his operation while the fracture was uniting. There is some hope he will recover further movements in this right hip with the passage of time but quite clearly his movements will never be normal. Because of the fixed flexion deformity of the hip he has an apparent shortening of his right leg which might be assisted by wearing a small shoe raise. I have recommended that to him. I don't think there is any merit in further rehabilitation or physiotherapy at this stage."
A further written report by Mr Turner dated 28 June 1989 states that the plaintiff had told him that he got occasional pain in the right hip, which was worse after activity, but that with sticks he was able to walk about half a mile. His leg and back got sore if he walked too far and he had persistent limitation of movement. Examination showed that his range of movements was essentially unchanged. The surgeon said that "This man has persistent symptoms in his right hip. These are due in part to the limitation of movement. It is unlikely that there will be any significant improvement in the foreseeable future."
The plaintiff's own evidence is that he suffered from considerable pain while his leg was in traction between 13 March and when the surgery was performed on his foot at the end of that month. He had suffered a long laceration in the left cheek, which by the time of trial had completely healed, and was visible but not disfiguring on inspection. His own descriptions of his hospital and physiotherapy experience conformed with what the written records indicate. He still has to use sticks in order to walk any distance, that is, anything over 20 or 30 yards. He had not used sticks or any form of assistance before the accident in March 1985. He is a keen bridge player, and has to take cushions for sitting in comfort when he goes to play at the bridge club. He gets a good deal of discomfort much of the time, not amounting to pain; but does get aches and pains intermittently. He has continued with rehabilitation exercises. He knows he should walk for exercise as much as he can, but at the same time fears damage to his hip if he does too much of this. He needs assistance in bathing and dressing, particularly with his lower right leg. His wife puts on his sock and shoe and helps him in the shower. He has supports and adjustments to his bathroom and shower at home for safety and assistance. He can only bend to a certain degree and cannot stand up for any length of time, and is quite unable to work in the garden or mow the lawns and the like since the accident. He cannot lie down on his right side, so must lie on left side or back for sleeping. There is a scar about 12 inches long on the outside of his right leg from the hip down, because of the operation. The area around the scar feels numb. This was not so before the accident. He is conscious that his right leg is definitely shorter than his left. He has difficulty in manoeuvring his right leg in and out of a motor vehicle, but once in the driving position is comfortable. He has no trouble in driving. He cannot sit for extended periods in the one place. He is an instructor of bridge, but has to do his instructing sitting down instead of standing at a blackboard, as he would ordinarily do.
In summary, the plaintiff has suffered a substantially disabling injury with much accompanying pain and suffering in the first two months or so. He is left with very significant residual disabilities. His continuing ability to live a physically comfortable and active life at this stage of his existence is gravely interfered with and curtailed. I assess the plaintiff's damages under this head at $26,000.00. To this must be added an agreed sum of $23,901.06 paid to the Motor Accidents Insurance Board, as part of the overall judgment. That sum must then be deducted, pursuant to s27(1) of the Motor Accidents (Liabilities and Compensation) Act 1973. The only other head of damages I need to consider is a claim for the cost of gardening services between 1 July 1985 and 30 December 1985 and 1 January 1986 to 30 September 1986. The sum claimed is $1,620.00. It is also claimed that there will be costs for gardening services in the future. The evidence supporting the claim is a little nebulous in respect of amounts actually paid, and the amounts are and were paid from joint funds. The evidence does not indicate with any clarity what the respective beneficial holding of assets is as between husband and wife, but if I assume that they have approximately equal asset possessions, they should contribute equally to the gardening. I think the plaintiff is entitled to a reasonable sum, and I assess it broadly at $1,000.00.
The total award will therefore be $27,000.00, made up as follows:–
Award for general damages $26,000.00
Gardening 1,000.00
Special damages agreed at 23,901.06
$50,901.06
Less amount paid to Motor Accidents
Insurance Board 23,901.06
$27,000.00
0
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