Vertes v Matheson
[2001] WADC 105
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: VERTES -v- MATHESON [2001] WADC 105
CORAM: HH JACKSON DCJ
HEARD: 28-30 AUGUST 2000
DELIVERED : 11 MAY 2001
FILE NO/S: CIV 287 of 1999
BETWEEN: ZOLTAN TIBOR JANOS VERTES
Plaintiff
AND
NEVILLE ROY MATHESON
Defendant
Catchwords:
Motor vehicle collision - Intersection controlled by traffic lights - Liability, damages
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943, s 3A, s 3B, s 3C, s 3D, s 3E
Result:
Liability apportioned 80:20 in favour of the plaintiff. Damages assessed in the sum of $67,708.16 after apportionment.
Representation:
Counsel:
Plaintiff: Mr T H Offer
Defendant: Mr J P T Olivier
Solicitors:
Plaintiff: Leonard Cohen & Co
Defendant: Talbot & Olivier
Case(s) referred to in judgment(s):
Bradburn v Great Western Railway Co [1874] LR 10 Exch 1; [1874 ‑ 80] All ER Rep 195
Manser v Spry (1994) 181 CLR 428; 68 ALJR 869
Newman v Nugent (1992) 12 WAR 119
Paikos v Campion (1990) 12 MVR 64
Parry v Cleaver [1970] AC 1
Schmalkuche v Williams (1987) 47 SASR 355
Sibley v Kais [1967] 118 CLR 424
Wylde v Arriaza (1997) 25 MVR 539
Case(s) also cited:
Hacai Pty Ltd v Rigil Kent Pty Ltd, unreported; SCt of WA; Library No 960450, 16 August 1996
HH JACKSON DCJ:
Background
The plaintiff seeks damages for injuries and loss suffered as a result of a motor vehicle collision on 19 May 1997. Liability and quantum are both in dispute.
The plaintiff is a machinery parts interpreter, born on 18 February 1971 and, at the time of trial, was aged 29.
Liability
It is common ground that the collision occurred at about 6.15 am when the plaintiff was driving a Nissan Pintara station wagon 7ON 935 north along Carrington Street, Hamilton Hill and the defendant was driving a white Toyota Hiace van 8KT 930 west along Forrest Road. It is agreed that the weight of the plaintiff's vehicle was 1,295 kilograms and that of the defendant, 1,550 kilograms. The collision occurred at the intersection, which is controlled by traffic lights.
The plaintiff says he was stationary at the red traffic lights and that when the light changed to green, he began to drive his vehicle through the intersection when the defendant's vehicle collided with the right hand side of his vehicle.
He says the defendant was negligent in that he drove through the intersection when the traffic lights were red.
That is denied. The defendant says the plaintiff drove into the intersection whilst the light controlling the north bound traffic on Carrington Street was red against him.
A plan of the intersection is Exhibit 1. A copy marked by the defendant with what he says were the lines of travel and point of collision is Exhibit 11.
Four photographs of the vehicles in situ at the points at which they came to be stationary after the collision and showing the vehicle damage are Exhibit 6.
Two photographs showing views west along Forrest Road before the intersection are Exhibit 31.
Statements later given by the defendant to police and an insurance claims assessor are Exhibits 33, 34 and 35.
Liability - Plaintiff's evidence
At the time of the collision, the plaintiff was a machinery parts storeman. He lives in Coogee. He was driving from his home to his employment which he said usually took about 45 minutes. He said he usually allowed an hour. He drove through the intersection going to and returning from work each work day. Travelling north on Carrington Street the roadway changes from single to dual lane just before the intersection. He said the morning was "excessively foggy" but he could see the lights from 40 or 50 metres:
"It wasn't a big problem. I remember coming down to the lights. The lights had actually changed to amber as I was coming down the road.
How far back did you see them change?---Probably 40 to 50 metres; 30 to 40 - anywhere from around there. Again, plenty of time. There was obviously no problems at that. I coasted into the white line.
Were you in the right or the left‑hand lane?---I was actually in the right‑hand lane.
So the centre lane?---Correct.
Yes. You stop at the red light?---I do.
Are you behind the white line at that stage?---Absolutely.
Okay. What happens then?---I'm waiting, as you do, just checking a few things, ... waiting for the light to change. Once the light changed to green, I recall waiting and the light changing to green, I proceeded and at the last second I recall seeing some bright lights through the fog and again I recall being struck - - -
Okay. No. As you drive away from the lights, do you remember - you obviously start in first gear?---Correct.
Do you remember if you got into second gear?---I don't remember exactly if I'd got into second gear ...
...
Do you know how far into the intersection you had got?---I would've been maybe 10 metres, if that, granted that the white line is back from the intersection because of the angle of the intersection.
Sorry, you said at the last minute you saw some lights coming from which side?---From my right‑hand side.
Presumably there was a collision at that stage, an impact?‑‑‑Absolutely.
Do you know how long before the impact you saw the lights? Are we talking seconds? Are we talking - - -?---Yes, milliseconds, ... yes, quick as a blink.
As you were struck what happens?---I recall my body obviously crumbling to the right from where the car had come through and I recall my head actually going through my driver's side window and pressing up against the other car and I vaguely remember sort of the car - at this stage I feel that my eyes are all closed. It was all just spinning around and ...
... What else do you remember of the immediate ... ---Again, it all happened so quickly. I recall simply my head going through, from what I believe, my eyes were shut as probably a reflex reaction at that stage. I remember the car jolting and actually coming - hitting something else after the impact and then stopping. After that I remember roughly trying to open my eyes and I just had blood and glass. I remember blowing glass away from my face and I just passed out. I don't recall nothing then until being revived by ambulance people.
Were you revived in the car or were you actually on the way to hospital?---No, I was revived in the car ...
Why couldn't they move you?---As my legs were trapped under the steering wheel, etcetera, down where the pedals are.
What was down by the pedals?---It was where the other car had come through and collected probably under the wheel arch where it had pushed all of that - at that stage I had work boots on. I don't normally travel with work boots to work, but for some reason I had those on that day ..."
Under cross‑examination, he agreed that he had made arrangements to be at work a little earlier than usual, he thought at 6.00 am, about 15 minutes before the time of the collision. He denied that he was running late, saying:
"There's no pressure having to arrive at that time. That's the time I choose to arrive there to get my job done."
He said he had agreed with a work colleague to work together and to get there early to get the job done but he had woken late. He had, he said, decided not to try to get to work in a rush but to get there by 7.00 am. Two men were needed for the job but others were available as people worked on a 24 hour roster system and he had not needed to telephone to advise of the position.
He denied speeding to work and not stopping at the red light. As he approached the lights, they had turned to red and he had waited for a full sequence of lights. He agreed he had not looked to the right along Forrest Road before commencing to travel into the intersection. He said he had travelled about 10 metres, if that, into the intersection before being struck in the area of the driver's door. He said he drove off from the lights in the right‑hand lane, that is next to the median strip, at normal speed. He did not know if he had changed to second gear. He had previously estimated his speed at the moment of impact at 20 kilometres per hour. His vehicle was a 12 year old four cylinder station wagon with manual drive.
The other vehicle came from his right. All he had seen were some lights to his right immediately before the collision. He was shown Exhibit 11, the street plan already marked with the defendant's marking of the lines of travel of the two vehicles. Assuming the defendant had been travelling in the more southerly lane this indicated that the plaintiff's vehicle had travelled about 6.25 metres from the stop line to the point of impact. He denied accelerating heavily and said he did not think he had got to 20 kilometres per hour and said that was a "guesstimate" and that he did not know what speed he had been travelling at.
The plaintiff was re‑examined by Mr Offer:
"In relation to your normal practice before you went to work in May 1997, would you have normally showered before you went to work?---Yes. I shower every day before I go to work.
And on this particular occasion ... what time did you wake up?‑‑‑Usually, ... I give myself an hour to prepare before I go to work. I'd actually set the alarm earlier that morning. I hit the snooze button a couple of times and decided, well, I wasn't going to make it so there was no problems. Got up, had my shower, and aimed to be at work for 7 o'clock.
So you didn't skip a shower to try and not - - -?---No, not at all.
You said in your evidence‑in‑chief that you didn't normally wear shoes when you were driving yet you were wearing shoes on this occasion. Is that right?---That's correct. I was wearing my steel‑capped boots that day as it was a cold morning. Normally I would just travel in my slippers just because of the distance travelled ... I was just travelling to work usually without boots on. This day I had my boots on. They were nice new boots. The novelty of it all, I suppose, as well.
They're high‑topped lace‑ups?---Correct, they are.
And take a while to get into them?---Not overly huge time to get into them. I mean, you have your laces loose enough, you slide your foot in.
Can you describe whether it's any more or less time to slide your feet into your slippers than to get into those boots?---It's more time to put my feet into a pair of boots and lace‑up boots than it is to slip your feet into your slippers.
So had a shower, you got into your boots. Did you - were you speeding on the way to the intersection?---I wasn't speeding at all.
Okay. You got to the lights. You said that you stopped and you said you accelerated away - - -?---Yes.
- - - any differently to how you would normally accelerate from a static position at lights?---No, not at all. Again, it was just as normal. It was a normal day, just on my normal way to work. There was no consideration of being late or anything.
As you went through ... Were you able to see whether the car did or did not deviate left or right before it struck you?---Not at all. I had no time to comprehend any of that.
... Are you able to say whether the car that struck you was travelling in a straight line before it struck you?---I'm afraid I can't speak for him. I know that I was."
Liability - Defendant's evidence
The defendant lives in Casuarina. He was, at the time of trial, a 48 year old assistant co‑ordinator to a funeral director but, at the time of the collision, worked as a florist in Hamilton Hill. He has held a motor driver's licence for 30 years. Normally, he would not have travelled by Forrest Road, but he had driven to the city for family reasons and was returning to Hamilton Hill west along Forrest Road in the left‑hand lane. He estimated the time at 6.20 am or 6.30 am. He said it was neither daylight nor dark and not foggy, although perhaps overcast.
"I came up to the intersection. The lights were green. I proceeded through the intersection and as I got about halfway where the lights are, there was an almighty bang. I saw a flash of lights in a split second and my vehicle was spun around roughly in a 200 degrees direction.
Which direction? Clockwise or anti‑clockwise?---Clockwise.
... How far back were you from the intersection when you first saw it?---Well, you can see the intersection quite a way back but I actually made a decision to go through the lights at about the second lamppost back from the corner. The lights were green and I - - -
...
How do you know?---Because I made that decision to go through.
... did you recently revisit the scene?---I did.
For what purpose?---To ascertain at what point the lights were green and at what point I made the decision to go through.
And did you do that in reference to the lamppost you have just mentioned?---Yeah. It was two lampposts up.
Two lampposts from where?---From the lights.
And where were you in relation to that second lamppost east of the intersection when you made the decision to go through the intersection?---I made that decision basically right at that point ...
How far is that from the intersection?---It's roughly 55 paces.
How do you know?---Because I paced it out.
Are they your paces?---They are my paces.
H.H. JACKSON DCJ: When you say "to the intersection" - perhaps if you would just look at that plan now, exhibit 1?
...
Do you see where the stop line is for the direction you are travelling in?---Okay.
When you say "55 paces", 55 paces from that line or from some other points?---From that line. Well, where the actual traffic post is that's got the lights on it, which would be - - -
That's really at the end of the line, isn't it?---Yes.
It's just south of the dark line itself so 55 paces back from that what happened?---At that point the light was green. I made a decision to go straight through the intersection. If it had been later on in the day, I would have gone left into Carrington Street, up to Rockingham Road and turned right at the lights and gone down that way. Because I decided that there would be no traffic at Rockingham Road, I could go straight through because the intersection at Forrest Road and Rockingham Road is extremely busy and it is quite dangerous. Because of that hour of the day, I decided I would go straight through.
So you were intending to cross the intersection and keep going along Forrest?---To the end of Forrest Road and turn right into Rockingham Road.
At the time you made your decision to travel through the intersection can you tell his Honour what you estimate the speed of your vehicle to have been?---I was doing approximately 50 kilometres an hour.
Incidentally, were you in any hurry?---Not at all. In fact I was running quite early.
...
... So you told us that you were some 55 paces back from the - we will call it the lights. ... You say you were in the kerbside lane travelling at about 50 kilometres per hour.
... did the line of travel of your vehicle change in any way ... at any time prior to the actual impact?---No, I remained in that lane. I didn't move.
Sorry, ... you went into the intersection?---I went into the intersection and as I approached the median strip, if you like, the centre of the road, a split second before impact I saw a flash of lights and I can't be absolutely certain, but I feel that I heard the sound of a horn, screech of brakes, but it was all so very quick. I can't be absolutely certain of that.
Had you driven your vehicle to left or right at any stage prior to the impact?---Not at all.
Now in the impact I think you said your car was hit on the left‑hand front extremity?---Left‑hand front side, yes.
What happened to it?---I travelled approximately one car length further on but in the meantime my car spun around at an horrific rate ...
H.H. JACKSON DCJ: I have got a copy of the plan that you have got in front of you. I haven't measured it up and tried to work it out, but my guess is this is a much bigger intersection than the average suburban intersection. Is that right?---Yes, your Honour. It would be a fairly large intersection in comparison to most.
That's in all four directions, really, isn't it?---Yes.
You've said that the lights were green when you were 55 paces back?---That's correct.
...
What I'm interested in is, given the sheer size of the intersection, whether any lights changed whilst these two vehicles were travelling in the intersection?----I'm not aware of any change.
You didn't see - assuming you went through it green, is it still possible that it had gone orange before you got to the other side? In fact, if the intersection were big enough it could go red before you got to the other side if you were going very slowly, couldn't it?---That is correct, sir.
I suppose that's what I'm asking you, did the lights that you were controlled by turn orange or red while you were going through the intersection?---No, the lights were green.
The whole of the time?---Well, they were certainly - they're certainly green at the point that I passed the intersection for certain.
OLIVIER, MR: When you say you passed the intersection, what part of it?---Passed the white line."
He confirmed he had taken no evasive action. He saw no other vehicles in the intersection. Police attended and took brief statements. The question of the colour of the traffic lights was not discussed.
The point of impact was just past the centre of the roadway of Carrington Street. After the collision, he said he had crawled out of his vehicle. Two men who had been travelling south in Carrington Street had pulled up.
Under cross‑examination, he was asked to identify the statement he gave to police at 7.10 am at the scene, Exhibit 33, which simply reads: "I was travelling west along Forrest Road. All I can remember is hitting the car ...". The following day, he reported the matter at a police station, Exhibit 34:
"I was travelling down Forrest Road in a westerly direction towards Rockingham Road my approximately speed was 50 kmh. Halfway through the intersection I collided with the Nissan Bluebird. It was travelling up Carrington Street in a northly direction towards Clontarf Road. I cannot recall any further details just prior to impact. I only recall the flash of a vehicle. I did not see the vehicle at all. On impact my van was spun around in a clockwise direction. I finished up facing the direction I was coming from. I do not know what speed the other vehicle was travelling but heard a screach of brakes. Seat belts were worn. I received bruising to my legs. The other driver was more seriously injured.
Police attended the scene of accident I think there were two people who saw accident but was too shaken to obtain names. The two people who saw the accident told me the lights were red in Carrington Street."
He subsequently gave a statement to an insurer, FAI, Exhibit 35, on 20 May:
"My understanding of the accident is the other vehicle went through the red light. I was travelling down Forrest Road west towards Rockingham Road. I went through the traffic lights at the intersection of Forrest and Carrington and collided with the other vehicle. It was travelling up Carrington Street north towards Clontarf Road. The only detail I recall is just before impact and being spun around in my van which finished up facing the direction I was coming from. The two people who stopped to assist said the lights in Carrington Street were showing red. I did not see the vehicle to take evasive action."
He agreed that in none of these statements had he said the traffic light was green when he entered the intersection. However, he said he had always remembered that that was the case and his "decision to go through that intersection, not to change down into third gear and go left into Carrington Street". He agreed that if the lights had been green at 55 paces and that he had then been travelling at about 50 kilometres per hour and if at the lights he had looked up and seen them red, he would probably not have been able to avoid the collision.
He was re‑examined about the statements, Exhibit 31, Exhibit 34 and Exhibit 35. At the scene, he said, he recalled only:
"... being asked a few brief questions and from what I can remember one was the direction in which I was travelling and the other was the speed at which I was travelling. They were the only two questions I really recall being asked.
You were shown a statement attributed to you. Did you volunteer information or did you answer questions that were asked of you?---From memory, I just basically answered questions that were asked."
As to Exhibit 34, he said:
"... I was of the opinion that the two men that were at the scene of the accident had seen the accident and had given the police their names, so I basically left it at that. It wasn't until a couple of days later on that I realised that the police didn't have any witnesses ..."
He was asked as to Exhibit 35:
"Why did you say "My understanding"?---I don't know. I don't know why I wrote it like that.
Could you see the lights as they presented themselves to the driver of the other vehicle at the time you entered the intersection?---Could I see the lights?
The lights that presented themselves to the other vehicle?---No.
Incidentally, which lights were you referring to when you said they were showing green when you made your decision to, instead of turn left at the lights, go straight through?---The ones closest to me.
Would you tell his Honour, if you can, the last point at which you saw those lights prior to the incident?---The last point at which I remember seeing those lights was as I passed the white line.
You sent on to say, ... "The only thing I recall is just before impact". ...---What I'm saying is that I don't know what actually happened prior to impact. I didn't see the other vehicle coming. In other words, it happened like that basically, ... I didn't really know which direction he was coming from, what speed he was travelling, what he was doing ...
...
Were you describing, talking about where his vehicle might have been, what you didn't see or were you talking of the lights?---No. I was talking about where he was. I have no idea where he was or what he was doing or what speed he was travelling or anything else.
So when you wrote that out what were you focusing on?---What he was doing."
He was cross‑examined also as to whether the road was dry or whether the photographs, Exhibit 6, tend to show it was damp.
Conclusions as to liability
The onus, of course, is on the plaintiff to establish negligence on the part of the defendant on the balance of probabilities.
Although no evidence was led to this effect, I am prepared to assume that the traffic lights were operating normally so that a vehicle travelling on a green light could assume that crossing traffic would be facing a red light. The intersection in question is larger than many and the two crossing roads are not at right angles. I am prepared to assume that the traffic light controls make adequate allowance for this.
I also start by pointing out that there is no admissible evidence as to the presence of any independent witnesses such as the two persons referred to by the defendant in his reports, Exhibit 34 and Exhibit 35. The defendant's hearsay comments therein as to their statements are not admissible and if admitted, would carry no weight.
There was no reason apparent to me from their demeanour in giving the oral evidence why I should prefer either party to the other. Due allowance, in any event, must be given to the fact that collisions such as this occur quickly and cause shock and that, accordingly, estimates of matters such as speed and distance are not necessarily reliable.
Mr Offer for the plaintiff says that the omission from the defendant's statements of mention of the traffic lights facing west - bound traffic being green at the relevant times suggests either that they were not or that the defendant has no memory or knowledge of the true position.
Mr Olivier for the defendant says that the explanation is, as the defendant says, that the defendant had travelled normally through the green light and been involved in a collision with something he had not seen and whose direction and speed of travel he had no knowledge of and that his statements simply address that. He has made no claim arising from the collision and is a mature man with a long driving history.
On the other hand, Mr Olivier says the plaintiff was running late for work, to the extent that he had unusually put his work boots on, and is keen to recover damages for his injuries. Mr Olivier also points to the evidence suggesting that, if the plaintiff had, as he said, been stationary at the stop line, he would have travelled about 6.5 metres before the collision.
The probable inference, Mr Olivier says, is that the plaintiff either did not see or chose to travel through a red light.
The defendant had travelled considerably further into the intersection before reaching the point of impact: See Exhibit 11.
I agree with Mr Offer that it is not possible to infer anything as to the cause of the collision from the damage to the vehicles or from the points at which they came to rest. Both of the two drivers say they did not either brake or deviate and neither had any more than an extremely short period of notice of the other's existence. There is no independent witness evidence. Given the unreliability of estimates of vehicle speed and the lack of evidence of the timing sequence of the lights, I am unable to infer whether or not a possible cause of the collision might have been that the defendant's vehicle entered the intersection whilst the light was amber and simply failed to get across before the light facing the plaintiff turned to green. The reverse possibility seems remote given the distances travelled by the vehicles prior to the point of impact. There is no evidence of other traffic or pedestrians which may have diverted the plaintiff's attention. Although there is no oral evidence as to this, the photographs show that the defendant's headlights were switched on as they were still operating after the collision.
Mr Offer says it may be inferred that a person who has come to a stop at the lights would not take off without having a green light in his favour. He says the plaintiff was strong and not shaken on that point. He had no hesitation in making various concessions at other points of the evidence but he made no concessions on that point of the evidence. He was absolutely certain he had stopped at the light.
On the other hand, the defendant, when giving his evidence‑in‑chief, started from a proposition, "The lights must have been green because 55 paces away from the intersection I had come to the decision that I was going to go straight through".
Taking that into account, together with the statements that he made after the accident, Mr Offer argues that the defendant is simply not an accurate witness.
Given the content of those statements, Mr Offer urged me to find that the defendant had no knowledge or memory of what the traffic light had shown on his entering the intersection and, therefore, to accept the plaintiff's evidence.
While I am satisfied that the defendant honestly believes that the lights facing him were green when he first saw them and that that was about 50 metres back from the light and that it was still green on his entering the intersection, I am not satisfied that that is correct. His statements on consecutive days do not address that crucial question. I am satisfied that he is an honest man and a careful driver, but I think he is here mistaken. He may have entered the intersection on an amber or even a red light even though, at some earlier point, he saw the light to be green. I think it unlikely, given the silences in his statements, that he can be sure of the point at which he saw this. I see no reason to disbelieve his evidence that he was early for work and driving at about 50 kilometres per hour.
Whilst the plaintiff is firm in his evidence, the circumstances of his being late are suspicious and Mr Olivier says that if he did stop at the lights he would not have reached his estimated speed of 20 kilometres per hour within seven metres. I accept, however, that that estimate may well be quite inaccurate.
On balance, I prefer the evidence of the plaintiff. As Mr Offer noted, he made concessions he might not have needed to make. In various respects, he appeared to me to be an honest and reliable witness.
That being so, the question arises as to whether any negligence is established against the plaintiff by reason of his failure to see the defendant's vehicle and avoid a collision.
Sibley v Kais [1967] 118 CLR 424 establishes that drivers at intersection are required to be aware of and take care to avoid collisions with approaching vehicles and cannot rely upon others performing their duties as drivers in accordance with traffic regulations. In Schmalkuche v Williams (1987) 47 SASR 355, a motor cyclist who entered an intersection against a red light was held 45 per cent responsible for the collision, the motorist who failed to see him 55 per cent. However, the motorist was turning right across the face of oncoming traffic, here the motorcycle, which should have stopped at the light.
Paikos v Campion (1990) 12 MVR 64 is a much more close analogy.
Mr Offer concedes that, given the relevant circumstances at the time, the plaintiff was negligent and liable to some extent for the collision, simply by virtue of not having kept a lookout to see and avoid the collision. Given what I think must have been a short time between the plaintiff commencing to enter the intersection without looking to his right and given the size and contours of the intersection which is one in which additional care is needed to ensure that other vehicles have cleared the intersection, I think liability should be apportioned 20 per cent against the plaintiff.
Assessment of damages
The plaintiff says that in the collision he suffered fractures of the pelvis, right sacrum and right ankle, abrasions, lacerations and bruising and an injury to the right knee, with consequential damages. He was admitted to hospital that day and discharged some six weeks later on 6 June 1997, then spent some months housebound because of the pelvis injury which prevented him weight bearing on it. He says he is still disabled from doing certain physical things.
Fremantle Hospital reports
Medical reports from Fremantle Hospital were tendered by consent: Exhibits 2, 3 and 4. An outpatient review on 16 June 1997 showed his hip was causing discomfort, but generally settling. His ankle was moving well. He was to remain non‑weight bearing for a further month. On 14 July, an outpatient review found his pain was gradually settling. He was to commence partial weight bearing on his right leg.
On 11 August, his ankle was progressing well, and x‑rays were satisfactory. He had some diminution in dorsi flexion, but was walking without aids. His pelvis was still giving him some posterior discomfort, and he was unable to stride out when walking. It was suggested that he commence some physiotherapy, and could return to light duties.
On 13 October 1997, some discomfort of the medial malleolar screws was noted. He was troubled only by occasional left sided lumbosacral backache with no radicular symptoms. "His right side was asymptomatic. It was reasonable for him to return to his sports such as scuba diving, but he was not to water ski. Mr Vertes was coping well with light duties at work, and was undertaking a retraining programme".
On 23 March 1998, the plaintiff complained of ongoing lower back pain. He described stiffness in the morning and difficulty stretching when getting out of bed. Prolonged periods of sitting created pain in the right side. The pain appeared to be localised to the right buttock region, and did not radiate down the legs. There was no leg weakness. Examination revealed obvious lumbolordosis, hyperlordosis and tenderness over the right sacroiliac region. Stretched leg raise was 80 degrees, however, that was limited due to hamstring tightness. He was referred for a bone scan. He was keen to have his plates removed as soon as possible, as that interfered with his work wearing long boots.
The bone scan was undertaken on 31 March 1998.
On 6 April 1998, he still complained of ongoing lower back pain. Anti‑inflammatory medication was prescribed.
He was admitted to hospital on 4 May 1998 for removal of the medial malleolus screws, right ankle. Post‑operative recovery was uneventful, and he was discharged the same day.
On 18 May 1998, staples were removed. He was back at work, but continued to have lower back pain.
On review in the Pain Clinic on 1 July 1998, he reported that the lower back pain woke him at night, and that sitting for a long time at work increased his pain. He was taking Panadeine Forte, up to four a day. On examination, there was no deficit in his lower limbs. His abdomen was normal. Range of movements of his lumbar spine were full but with pain, flexion being more painful than extension. He elected to try Facet Joint Injections at L4/5 and 5/1 on the right side.
At review in the orthopaedic outpatient clinic on 7 September 1998, he was very happy with the results of surgery to his ankle and subsequent plate removal. He was not having any problems in that regard. He still had trouble with low back pain, but had seen Mr Vaughan and was continuing to see Dr Duncan Anderson. In relation to his leg, he was discharged from further attendance at the clinic.
At review by Dr Anderson in the Pain Clinic on 9 September 1998, he advised that he had had no help from Facet Joint Injections. Mr Vaughan had arranged an MRI which was apparently normal. The plaintiff was working and was doing shift work. He had elected to have an Epidural Steroid Injection.
Apparently, he had also been seen privately by Mr Wren, Orthopaedic Surgeon.
Medical evidence
Reports by Mr R Vaughan, neurosurgeon, dated 3 August 1998 and 7 August 1998 were tendered by consent, Exhibit 15, as were a CT scan report by Dr R Dalrymple dated 13 November 1998, Exhibit 16, and an MRI scan report by Dr D J Sweeney dated 5 July 2000, Exhibit 17. A report by Dr D Anderson dated 27 November 1998 is, by consent, Exhibit 18 and two reports by Mr F B Webb dated respectively 14 and 25 August 1997, Exhibit 19 and Exhibit 20. An x‑ray and CT scan report from Dr Weng Chin dated 18 August 1997 is, likewise, Exhibit 21. A discharge report from Fremantle Hospital dated 4 May 1998 is Exhibit 22.
Mr Webb reported on 14 August 1997:
"I obtained a history ... that on 19.5.97 he was driving a car and a car on his right came through a red light and smashed into the driver's side of his vehicle. I note that he sustained a fracture of his right tibia and fibula. He had dislocation of a symphysis pubis, a fracture of the spinous process of S1, scalp laceration and head injury. There was loss of consciousness for an indeterminate period. He said he seemed to drift in and out of consciousness. He remembers coming to briefly in the ambulance and the next thing he really remembers is after the operation. He had his tibia pinned and the scalp laceration was sutured. He has developed some swelling in the right calf and knee ...
...
The patient's complaints at the present time two months down the track are that he is continuing to get some low back pain. He says he gets a feeling of pressure and aching at the top of both buttocks. He is concerned about his right knee. He says he is continuing to get variable pain in his right knee, mostly at the back of the knee but sometimes in the front. He says that from the x‑rays he feels that his right limb is shorter than that on the left, although he has not necessarily been aware of this when he walks. He came off crutches some three weeks ago. He was glad to discard those. He says he cannot walk for a prolonged period of time. He says he still has a little bit of trouble sleeping at night but he has not noticed any alteration in cerebral function.
On examination a muscular man who has the scars over medial and lateral malleoli and it was apparent that it was a broken ankle rather than a broken midshaft tibia. He has tattoos on both shoulders. He is apprehensive of lumbar spinal movement. Forward flexion fingers reach just below the level of his knees. He was quite markedly tender to pressure over the lumbo‑sacral joint space. Straight leg raising was 70 degrees on both sides with a negative Le Seque's. I could not demonstrate any neurological deficit in his lower limbs. Knee and ankle jerks were hyperactive. The skin of his feet was cold, possibly a little cooler on the right than on the left but the peripheral pulses were present, equal and of satisfactory volume. He has scars over the medial and lateral melleoli. There is still quite a bit of soft tissue swelling over the lateral aspect, giving the appearance of slight varus of the right ankle. He was tender to pressure over the peroneal compartment but there were no signs of a DVT as such. He has some 10 degrees of dorsi‑flexion possible, 25 degrees on the uninjured left, and plantar flexion is restricted by about 10 degrees at the right ankle. Subtalar and midtarsal joints appear to be satisfactory.
As far as his right knee went, there was no effusion. He has a full range of movement. There was some tenderness over the lateral joint line. I could not detect any significant difference in the length of his lower limbs, possibly up to ½ cm. shortening of the right lower limb in regard to apparent lengths of the limb, the real lengths were equal to measurement.
He brought in with him a lot of x‑rays. An x‑ray of his right knee done on 3.7.97 ... shows some calcification posteriorly in the lateral view only and the Radiologist has felt that this may represent calcification following injury. He does not think it is a fabella but it is not big enough to be seen in an AP view anyway. ... X‑rays of his right ankle done on the day of admission and he is shown to have an adduction type fracture of his medial melleolus, and then there is a series of films of his ankle presumably taken in the operating theatre. The first films show the medial malleolus has been fixed back in anatomical position with two AO cancellus small fragment screws and washers. The next films show two further screws have been added on the antero‑lateral aspect of the tibia, putting back a piece of antero‑lateral bone which has fractured, and it is apparent that he has a very virtually undisplaced fracture of the fibula, and the last of the series of films show that a 3 hole fibular plate and small fragment has been applied with restoration of normal anatomy. The last x‑rays of his ankle taken on 11.8.97 show that normal anatomy is maintained and union is well advanced.
...
There was an x‑ray and CT scan of his pelvis which show minimal elevation of right side of the pelvis at the symphysis pubis, a fracture of the junction of the superior pubis with the ilium and a fracture through the lateral mass of the sacrum on the right side.
There were further films of pelvis done on 16.6.97 which shows that the superior pubic ramus fracture appears to be uniting and the degree of displacement is not quite as great as on the earlier films. There was a further film of his pelvis done on 11.8.97 which shows that union is well advanced in the pubic rami fracture. The slight degree of tilt and upward displacement of the right side of the pubis remains, and there is the suggestion of an inferior pubic ramus fracture is confirmed on series 6. It is difficult to read the date on the films. There were films of his skull and cervical spine which showed no apparent damage, and also x‑rays of his chest taken on the day of the accident.
The Doppler studies done on 23.6.97 of the right lower limb were all normal.
I have reassured him that his ankle has been put back together in an anatomical position and I do not think he will end up with any longer term permanent disability in that regard. The degree of shortening that he has on the right is inconsequential and I do not believe he will be left with any significant permanent disability as a result of this ...
...
His CT scan shows a vertical fracture through the right side of the sacrum and right sacral foramina being involved with some healing sclerotic reaction to the fracture margins, but no obvious sign of bony union at this stage. There is minimal diastasis of the left sacro‑iliac joints with a small avulsion bony fragment seen along the anterior margin of the sacro‑iliac joint, ... The overall comment is that there a healing minimally displaced vertical fracture of the right ala of the sacrum and minimal anterior diastasis of the left sacro‑iliac joint with alignment remaining unchanged from 21.5.97. ...
If the patient is having too much in the way of trouble with that right knee arthroscopy would be indicated, but apart from that he is looking at a continuation of conservative management."
On 3 August 1998 Mr Vaughan reported:
"The area I am asked to comment on relates to pain around hip area, lower back, right hip, groin, upper right thigh and that pain not resolving nor being helped by recent facet blocks.
There is no evidence of specific neurologic loss nor instability to testing but fractures have been shown in the right ala of the sacrum and co‑existing with a minimal anterior diastasis of the left sacral iliac joint. The ongoing pain state has interfere with his life, both at home and at work but he would appear, nevertheless to be coping and have a positive attitude to his problems and the question is now, is more able to be done to help the pain state.
I would like an MR to show more detail of the lumbar spine and the pelvis and the neuro structures therein and to make comment thereafter - whether or not caudal's would help I would decide and perhaps also would be a consideration to rhizotomies to lessen any associated muscle spasm from the ongoing inflammatory changes associated with moulding of the fractures."
Soon after, he added:
"The MR scans have not identified any neural abnormality and so ongoing pain management should be directed through one of the appropriate pain management groups."
On 27 November 1998 Dr Anderson reported:
"This patient was referred to me by the orthopaedic department at Fremantle Hospital. The patient was initially seen at Fremantle Hospital on 1st July, 1998. The patient was complaining of back pain on the right side of his lumbar spine. This had been present since a motor vehicle accident in May of 1997. On one occasion the pain had radiated to his right leg. He informed me that the pain woke him at night. He informed me that he was working full time. Sitting for long periods of time at work increased his pain. He was taking panadeine forte up to four per day.
On examination there was no deficit in his lower limbs. His abdomen was normal. Range of movements of his lumbar spine were full but painful. Flexion was more painful than extension.
He was made aware of his entire range of options and offered facet joint injections at L4/5 and 5/1 on the right side.
He was next reviewed on the 9th September, 1998. He informed me that he had had no pain when he had the facet joint injections. He informed me that he was being investigated by Mr. Richard Vaughan who had arranged for an MRI. The patient informed me that the MRI had been normal. Mr. Vertes informed me that he was continuing to work and was doing shift work.
He was again made aware of his entire range of options and elected to have an epidural steroid injection. He was of course made aware of the depo medrol controversy prior to electing to proceed to an epidural steroid injection."
Dr N D Barrett has been the plaintiff's general practitioner, both before and since the collision. His reports of 1 December 1997 and 22 September 1999 are Exhibit 27A and Exhibit 27B, and a report of 18 September 1997 is Exhibit 27C. By the middle of 1998, the plaintiff's limiting factor was back pain. At trial, Dr Barrett expressed the view that while there had been slow but steady recovery and the plaintiff is able to do most things, he suffers a functional disability of the back of about 10 per cent. The plaintiff is not fit for heavy manual labour. There is no future treatment and the plaintiff uses pain killing medications for moderate to severe pain in order to sleep, two or three times weekly. The ongoing back problems may be permanent. The price was agreed at $16.90 for 20 tablets: Exhibit 28.
Mr M N Wren, orthopaedic surgeon saw the plaintiff on 23 November 1998 and thereafter. His reports are Exhibit 29A to Exhibit 29F. On 28 August 2000, Mr Wren reported:
"Mr Vertes reported a discomfort in the area of the right knee since the ... accident ...
Knee problems were initially relatively minor compared to Mr Vertes other problem and to a larger extent he had ignored them initially. More recently they had become a little more problematic.
...
On the basis of physical examination and investigations I felt that the knee problem related to some minor degenerative changes within the knee and were not reflective of any traumatic injury to the knee area.
Mr Vertes reported continued episodic discomfort in the sacral region with episodic discomfort to which he had largely adjusted his lifestyle. Mr Vertes reported to me that he limits his activity particularly those involving reaching or stretching. He also reported discomfort if lying on his side at night time.
Pain was predominantly felt in the right sacro‑iliac region radiating into the ischial tuberosity area of the buttock. Discomfort particularly with tenderness to pressure over the greater trochanter had been experienced since the time of his accident and continued to be reported.
I do not anticipate requirements for future treatment or surgery. The fracture involving the sacral ala is not likely to predispose to future degenerative changes of the hip joint itself although may slightly increase the propensity for development of degenerative arthritis of the sacro‑iliac joint on the right side."
Giving oral evidence, Mr Wren said that the back pain was predominantly in the buttock area on the right side related to the fracture of the pelvis and consistent therewith. He did not anticipate substantial change. Pain had continued longer than anticipated because of the slow healing of the fracture. Recovery had not been quite as quick or complete as predicted earlier because of that.
Plaintiff's evidence
He left school at the end of Year 12, then in 1990 worked as an apprentice chef then as a fisherman on a daily and seasonal basis around Albany then on a trawler, for a period unemployed and later doing a bakery run before fishing in New South Wales and Albany.
Prior to the collision, he was employed by Westrac as a storeman for machinery parts and after the collision and at trial, as a parts interpreter. He described this work as supplying ongoing and replacement parts to maintain heavy mining equipment and other machinery in work. The information as to what is required and provided is dealt with by telephone and computer whereas the work as storeman involved the physical task of collecting and packing parts for delivery.
The plaintiff described himself as initially being in too much pain to move his legs, especially in the hip area and down his right side, undergoing physiotherapy exercises which he found very difficult and being taught to walk again and physically unable to toilet. He was newly engaged to marry, and was unhappy and uncomfortable in hospital.
The first month at home after discharge was spent living on a couch in the lounge room with a television set and food snacks. His present wife and mother‑in‑law helped him to shower and toilet. He became isolated from friends and frustrated at not being able to work.
When he recommenced work, he was still on crutches and with a plate in his ankle. He was having trouble wearing his steelcapped work boots. On one occasion, he slipped on tiles at home and had to take more time off.
He returned to work in October 1997 initially on a part‑time basis, returning to full‑time work on 10 February 1998. After about six months at home not being able to do domestic tasks and becoming frustrated at not being at work, he had asked Westrac if work was available. He commenced doing computer data entry tasks for about two hours per day although, on some occasions, he was unable to get to work and sometimes it was for less time. He says that at that time, he initially thought that he would be paid normal weekly wages but learnt that Westrac would pay him only for hours worked. That issue was, it seems, resolved by payments being made by virtue of the employer's group journey injury insurance coverage: See Exhibit 30. He received payments totalling $16,830.57 thereunder between 19 May 1997 and 12 May 1998: See Exhibit 23. The relevant insurance policy is Exhibit 30. It is agreed that during this period, Westpac paid the plaintiff for actual hours worked, $1,538.20 gross.
However, his hours of work were limited by his low back pain and the additional task of driving for about one hour each way to and from work.
Thereafter, he suffered some loss of income because of the need for further medical and surgical treatments.
He said he was taking two Panadeine tablets three times daily, and travelling to physiotherapy and hydrotherapy.
At trial, he was still suffering a sore back after prolonged sitting so that he gets up to walk and stretch perhaps 12 times each day. Lifting heavy parts and long periods of time spent standing also cause problems. He has difficulty sleeping without waking and having to adjust his sleeping position. In the morning, he has ankle stiffness. Low back pain is constant. Bending causes tightness and pain in the low back and behind the legs.
He was definitely of the view that he could not return to his pre‑accident work as a storeman because of the need to pick up large weights and the speed required.
He said he had applied for other positions within the firm but had had to withdraw his application on learning what was involved. These positions included country locations. Prior to the accident, he had worked as much overtime as he could obtain.
He said the accident had meant he could not accept an offer of work at Tom Price on an additional income of $1,000 per annum. Such jobs involve long shifts, attending at minesites and lifting heavy parts. He had also been interested in working at Argyle but, similarly, could not have coped with the work. He also seeks damages for loss of the chance of employment in more lucrative work in the north of the State.
The plaintiff's evidence is that he had played football from school days and had enjoyed scuba diving and water skiing, but did not now do so, although he had attempted water skiing once. He agreed that these had been on a social or leisure basis. He was now unable to do such activities. He said he still visits the swimming pool but does not lift weights.
He said he had also previously rebuilt cars and maintained his own. He could no longer do so.
Another activity he previously engaged in but was no longer able to do was gardening and lawnmowing. He still does some cooking but becomes very sore from standing on the tiled floor. He no longer assists with mopping floors or vacuuming. They have had some paid weekly domestic assistance for about one year and some unpaid help from his parents‑in‑law. Those parents‑in‑law have also paid for lawnmowing. In addition, there has been some paid gardening assistance.
He agreed that he had not done a lot of physical work since the accident but said that it had caused initial back pain and significant pain later. Walking and leisure pursuits cause pain.
Cosmetically, the plaintiff has scarring which extends for some 10 centimetres from the ankle bone to the low mid‑calf on the inner aspect and some 12 centimetres on the outer aspect of the right leg and which is about 0.5 centimetres wide. There is also scarring on his head from above the nose to the hairline and under the hair to the centre back of the head. He describes the scarring as causing itching and constant scratching. A bundle of photos is Exhibit 8.
The plaintiff married in February 1998. He also gave evidence that his relationship with his wife has been strained in terms both of sexual intercourse and sleeping in the same bed.
General damages
The provisions of s 3A to s 3E of the Motor Vehicle (Third Party Insurance) Act 1943 apply to this claim.
The ankle injury has now recovered, although scarring remains.
Current knee symptoms are minor and probably not the result of the collision.
Mr Olivier argues that the back problem is very largely recovered, now relatively mild and a minor continuing disability which the plaintiff has largely overcome by work and other adjustments.
The plaintiff has, of course, returned to full‑time work and, indeed, applied for a number country positions involving significant physical work.
By s 3C(2) and s 3C(3):
"(2)The amount of damages to be awarded for non‑pecuniary loss is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum amount that may be awarded.
(3)The maximum amount of damages that may be awarded for non‑pecuniary loss ... may be awarded only in a most extreme case."
It was made clear by the Full Court of the Supreme Court of Western Australia in Wylde v Arriaza (1997) 25 MVR 539 that a plaintiff who had suffered a very severe left leg injury and been left with permanent disabilities including extensive scarring, deformity and a limp, which badly affected his economic, domestic and social life fell within but toward the upper end of the lowest 25 per cent of a most extreme case.
In my view, the present plaintiff clearly falls lower in the range than the plaintiff in that case.
The presently prescribed maximum amount is $219,000.
I assess the plaintiff's case as 15 per cent of a most extreme case, so that a figure of $32,850 results. By s 3C(5), that is adjusted to $22,350 in accordance with the presently prescribed amounts.
Economic loss
Mr Offer says that the plaintiff is entitled to claim total loss of income from the collision until 10 February 1998, subject to liability. Notwithstanding the receipt of the moneys paid by MMI under the policy, an equal amount is claimable by the plaintiff on the basis that the moneys originally so paid are regarded as collateral benefits: See Luntz, The Assessment of Damages, 3rd ed, par 8.1.7 to par 8.1.16, Bradburn v Great Western Railway Co [1874] LR 10 Exch 1.
Mr Offer's approach is to assume that the plaintiff's average earnings for the first 46 weeks of the 1996 to 1997 financial year including both ordinary time and overtime would have continued, but for the collision, to 30 June. That would amount to six weeks at some $711.56 per week gross, a net loss of $3,194.66.
Thereafter, during the financial year 1997 to 1998, the time at which a new collective workplace agreement came into operation, the plaintiff seeks 40 weeks loss of wages at $531.57 per week for 40 hours ordinary time work as a class 5 storeman, $21,262.80 plus 305 hours overtime at time and a half, $6,079.83.
The plaintiff also claims further loss of income during that year for loss of two rostered trips to Argyle.
In all, that comes to a claim for loss of income of $34,654.67 during that year.
That, however, ignores the payment of money to him by reason of the insurance arrangements between his employer Westrac and MMI. If that is ignored, the plaintiff's income was an amount net of tax according to the plaintiff of $11,144.43 so that he claims a loss of about $23,500.
During the period from 1 July 1998 to 30 June 1999 the plaintiff enjoyed a pay increase due to reclassification. The plaintiff claims $5,951.21 and for 1999 to 2000 a further $2,500.
Total past loss of income is claimed of $35,000 together with loss of superannuation benefits of $2,600 after reduction by 30 per cent in accordance with Jongen's case.
Interest is claimed at 5 per cent given that most past loss accrued in 1997 and amounts to $5,500.
The total claim for past loss is thus $43,413.02.
A book of the plaintiff's income tax returns and associated forms for the years ending 30 June 1989 to 2000 is Exhibit 5. In summary, his taxable income over these years was:
1989 $4,136
1990 $7,344
1991 $3,953
1992 $9,878
1993 $5,855
1994 $11,107
1995 $21,016
1996 $19,158
1997 $36,144
1998 $29,411
1999 $40,852
2000 $47,582
Only after the plaintiff joined Westrac in the 1995 to 1996 year did his income become regular and not depend significantly on social security benefits.
One of the explanations for yearly variations is the amount of overtime worked prior to the collision.
A copy of his workplace agreement with his employer dated 7 October 1999 is Exhibit 9. An earlier collective agreement is Exhibit 10.
The defendant tendered a schedule of fortnightly income tax instalment rates for income received after 1 January 1997: Exhibit 32.
Mr N L Hampson, parts inventory and warehousing manger of Westrac Equipment, and therefore the plaintiff's superior, supplied a letter dated 18 June 1997 confirming the following:
"Mr Vertes commenced employment with WesTrac Equipment Pty Ltd on the 20th November 1995, in the capacity of a Storeperson in the company's Parts Warehouse working 40 ordinary hours per week under a registered Workplace Agreement.
Mr Vertes has not return to work since the accident on the 19th May 1997. Mr Vertes's Gross YTD is as follows:
$ Hrs
Ordinary 25,183.57 1,787.40
Overtime 7,548.35 350.75Total32,731.92 2,138.15": Exhibit 26
The income figure is gross.
At trial, the plaintiff was a Grade 5 parts interpreter. The basic rate of pay for a storeman, which the plaintiff was prior to the collision, is less than for a parts interpreter but there is greater scope for overtime work.
Cross‑examined, the plaintiff agreed that he had applied in October 1997 for work as a tools storeman, although the job involved dealing with large parts. He had also applied for positions in Tom Price (as a parts interpreter), Geraldton (as a supervisor, for which he did have the qualifications) and in Newman: See Exhibit 12. He was offered the position in Tom Price but declined it because of the workload, even though his income would have been higher.
The hourly rates for Argyle and other work sites are set out in the workplace agreement, Exhibit 13. Argyle workers worked there for six weeks, seven days per week, 12 hours per day.
He agreed that he works overtime in his present position, as many hours as prior to the collision.
He agreed that he had applied for one position at least with Westrac prior to the collision, unsuccessfully.
Since the collision, he had also written to Shell People Services, Oilfield Equipment Sales and Kailis Bros seeking employment. In each case, he said he thought he could cope with the work and in none did he mention the injuries caused in the collision. He described himself as outgoing and as having qualifications in health and safety areas and some computer skills and skills in negotiation and customer service.
Mr Hampson was questioned about roster arrangements for the Argyle site. At the time of trial, arrangements were in hand to work a two week roster with two staff rostered on site at any roster. The gross hourly rate applicable to the plaintiff's classification was $23.49. At the same time, the Perth rate was $14. The work is not simply parts interpreting but involves storeman's work requiring the worker to be reasonably strong and fit.
Cross‑examined, Mr Hampson agreed that the Argyle stores position was operated on a one‑man roster using lifting equipment where necessary. The position operates 12 hours per day, seven days per week at a flat hourly rate. In Perth, the work is done on an eight hour day, five days per week at $14 per hour with regular overtime available.
The plaintiff's argument that the payments by MMI should be ignored is based on a line of authorities from Bradburn v Great Western Railway Co [1874] LR 10 Exch 1; [1874 ‑ 80] All ER Rep 195 including Parry v Cleaver [1970] AC 1 and Manser v Spry (1994) 181 CLR 428; 68 ALJR 869.
Although the High Court of Australia in Manser v Spry (1994) 68 ALJR 869 was largely concerned with a matter of statutory interpretation, the High Court also discussed the essential principles to be applied where a statutory benefit is created. However, I do not regard the decision as helpful of my decision in this matter.
In Parry v Cleaver, Lord Reid, having earlier pointed out that at common law proceeds of insurance and moneys received out of benevolence are disregarded when compensation by way of damages is assessed, at page 14, pointed out that the reason in each case lies in the fact that the benefit is intended for the injured person, not the wrong doer. He added that the fact that the insurance is required by the employer as a term of the injured's employment makes no difference. The question is one of the nature of the payment, not its source.
Mr Olivier argues that the line of authority based on Bradburn is irrelevant to the present matter, the situation here being that the employer had insured itself in respect of its workforce members, rather than the employee having a contract of insurance. I agree.
In my view, the nature of the payment here, being under insurance arranged and paid for by the defendant, is one to benefit the defendant by removing its risk of having itself to pay wages for injured workers unable to work. It is intended for the benefit of the employer. Accordingly, I do not disregard the payment.
Applying the tax table deductions, Mr Olivier argued that the net loss between 19 May 1997 and 9 February 1998 was $402.98, between 10 and 17 February $422.69 and between 4 and 16 May also $422.69. To add in lost net overtime earnings over the 41.7 weeks, he calculated a loss of $107.98 per week based on the plaintiff's gross overtime earnings calculation of $163.60 per week. Those calculations amount in all to $21,379.96. After deducting amounts received from Westrac and MMI of $1,538.20 and $16,830.57, the defendant argues that the plaintiff's past loss of income amounts to $3,011.19.
Mr Olivier also argued, although there was no evidence on the matter that the plaintiff probably gradually increased his overtime between 16 May 1998 (when he returned to full time work and say 30 June 1999 when the plaintiff agrees he was working about the same hours as before the collision. Further, the evidence of possible loss of greater earnings in the country was speculative.
The schedules, Exhibit 32, are simply rates for fortnightly deductions dependent on whether a tax free threshold is claimed or not and whether a tax file number is quoted or not. The question of overtime must be considered, in my view, on the basis of past earnings and I would allow a modest additional amount on the basis of a lost chance of some additional country earnings. I award a global figure of $17,500 after deducting the MMI payments. I add, say, $1,500 for loss of superannuation.
Interest on past loss is allowed at 5 per cent for three years, $2,850. A total is arrived at of $21,850.
Future economic loss
As to future economic loss, the plaintiff seeks damages on the basis of loss of opportunity to work in some areas of employment for which he is skilled and experienced, either with another employer or with the same employer in some categories or geographical areas of work. He claims a loss of $50 per week to age 65, some $39,115 after application of the 6 per cent discount multiplier of 782.3.
Mr Olivier argues that, given the plaintiff's return to full time work and overtime in a position which is both better paid and less physically strenuous than his pre‑collision employment and the evidence of his applications for further positions both within and outside Westrac, the plaintiff has failed to establish any loss of future earnings except, perhaps, modest loss of a chance.
Mr Olivier pointed out that the plaintiff has, since the collision, been promoted and is likely to be further promoted so that the likelihood of his having to do heavy manual work will lessen. By the age of 50 or 55, he will not, in any event, want to do stressful manual work.
Prior to the trial, the plaintiff's rate of economic loss was diminishing and an assumption cannot be made, Mr Olivier urged, of an ongoing constant economic loss. Indeed, by trial, there was no evidence of such loss continuing.
I allow $25,000.
Gratuitous services
The plaintiff claims for gratuitous services as follows:
"1. Past Gratuitous Services
1.1The Plaintiff received gratuitous services from his wife and his mother‑in‑law from the time that he was discharged from the Fremantle Hospital on 6 June 1997.
1.2From 6 June 1997 to about the end of June, the Plaintiff's wife assisted him for approximately 3 to 4 hours per day. The Plaintiff's mother‑in‑law also assisted the Plaintiff when she was in Perth.
1.3From July 1997 to date the Plaintiff's wife has continued to provide assistance to the Plaintiff of approximately 4 to 7 hours per week.
1.3.1For the initial period after discharge from Fremantle Hospital - 3.5 weeks @ 4 hours/day, that is, 28 hours/week = 98 hours @ $10 per hour = $980.00.
1.3.2From 1 July 1997 to 10 January 2000, that is, 924 days ¸ 7 equals 132 weeks. 132 weeks @ 7 hours per week @ $70 week = $9,240, alternatively 132 @ 4 hours per week, that is $40 per week = $5,280.
Total past gratuitous services is between $6,26.000 and $10,220.00.
2.Future Gratuitous Services
The plaintiff is currently 28 years of age and his life expectancy is 48.66. On the 6% multiplier for 48 years is 840.9.
The plaintiff will continue to require ongoing assistance from his wife, calculated at approximately 2 to 4 hours per week being between:
(a)$20.00 per week x 840.9 = $16,818.00; and
(b)$40 per week x 840.9 = $33,636.00."
By s 3D of the Motor Vehicle (Third Party Insurance) Act 1943, damages for the value of gratuitous services of a domestic nature or relating to nursing and attendances provided or to be provided by members of the same household or family may only be awarded if the services would not have been or would not be provided to the person if he or she had not suffered the bodily injury. Further, the amount to be awarded in respect of the services is limited by the section and, if the amount is $5,000 or less, no damages are to be awarded.
Newman v Nugent (1992) 12 WAR 119 is authority for the propositions that any compensation payable to the plaintiff in respect of past gratuitous services must be compensation for his incapacity to look after himself and that the compensable loss is the existence of the need for those services. What is being compensated for is the need for services created by the accident. An estimate of the capital value in money of this need must be made, and a plaintiff should be compensated accordingly. It is not necessary for a plaintiff to show that the need is or may be productive of financial loss. Accordingly, interest should be awarded on this compensation from the time the loss was incurred.
The plaintiff claims for four hours per day whilst his mother‑in‑law was assisting.
The plaintiff's wife, Mrs M A Vertes, gave evidence. They met in March 1996 and married in February 1998. At the time of the accident, she was working full‑time as a travel consultant and living with the plaintiff. After his discharge from hospital, she assisted him with bandages, toileting, meals and other household duties, some of which such as cooking he had previously done himself. She estimated all this occupied her for about two hours daily. For about three weeks, her mother also stayed in the house and gave some assistance. For a few months, the plaintiff slept on the lounge. After a couple of months, he attempted to shower himself but for about six months, he could not do any housework, for example. He then started to do some cooking, gradually increasing his activity. He became frustrated, angry and moody for at least a year and their relationship suffered. Mrs Vertes and her mother drove him for medical appointments, physiotherapy etc. A cleaning lady was engaged weekly for a year. A gardener was engaged and came to the house about quarterly for a year.
At the time of trial, Mrs Vertes still continued to assist the plaintiff by rubbing his back with pain relieving ointments about twice per week. He has difficulty sleeping which disturbs her and their physical relationship is diminished. Emotionally and physically, the position had improved over the last year. The plaintiff had, however, put on a lot of weight because of lack of physical exercise.
Mrs K A Nicholls, the plaintiff's mother‑in‑law, gave evidence confirmatory of her daughter. The cleaning lady was paid $50 per week and the gardener $70 per visit about two monthly or so. The appropriate rate for gratuitous services is agreed to be $10 per hour for the plaintiff's wife.
The plaintiff agreed that the gratuitous services provided by his mother‑in‑law would not have exceeded an hour or two daily during this period.
For about two years, the cleaning lady came weekly.
He agreed that while he now pays for lawnmowing, prior to the collision, he had paid to hire a mower plus fuel. Additionally, he agreed that for a period after the collision, he had saved money by not having to travel daily to from work.
For four or five weeks after the accident, his wife and mother‑in‑law had assisted with his medical needs such as dressings.
I allow, at the agreed rate, an amount for the gratuitous services provided by the plaintiff's wife and mother‑in‑law, bearing in mind that some of the services they performed do not qualify given that they either would have been provided in any event or were not solely for the plaintiff.
I allow for past and future gratuitous services, $7,500.
Special damages
The cost of gardening and lawnmowing and of a cleaning lady are properly to be regarded as special damages, not as gratuitous services (and, accordingly, not to be considered in terms of the statutory threshold). The lawnmowing, on the evidence, actually saved the plaintiff money. I allow $1,500. I also allow $360 for expenses on car servicing which the plaintiff would have done personally but for the collision.
Medical and pharmaceutical expenses
It is agreed that outstanding past medical and pharmaceutical expenses as at trial amounted to $7,575.20: Schedule 24.
Future medical and pharmaceutical expenses
The plaintiff seeks an award for future general practitioner consultations and medicines to age 65.
The plaintiff claims as future medical expenses:
"Consultations with general practitioner, specialists, ongoing physiotherapy, medication - global sum claimed of $5,000.00."
A modest allowance should be made under this heading for pharmaceuticals and visits to a general practitioner. I allow $2,000.
Travelling expenses
These are agreed at $1,500: Schedule 25.
Conclusions
For these reasons, I assess damages as follows:
General damages $22,350.00
Economic loss - past $21,850.00
- future $20,000.00
Gratuitous services $ 7,500.00
Outstanding past medical and pharmaceutical expenses $ 7,575.20
Future medical and pharmaceutical expenses $ 2,000.00
Travelling expenses $ 1,500.00
Other special damages $ 1,860.00
Total $84,635.20
After apportionment of liability $67,708.16
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