Wickham v Walker
[2002] WADC 167
•2 AUGUST 2002
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: WICKHAM -v- WALKER [2002] WADC 167
CORAM: COMMISSIONER REYNOLDS
HEARD: 15-23 OCTOBER 2001
DELIVERED : 2 AUGUST 2002
FILE NO/S: CIV 4468 of 1999
BETWEEN: NATALIE CLARE WICKHAM
Plaintiff
AND
LEITH ROBERT WALKER
Defendant
Catchwords:
Damages - Personal injuries - Motor vehicle accident involving pedestrian - Cognitive impairment and knee injuries - Liability and assessment
Legislation:
The Motor Vehicle (Third Party Insurance) Act 1943
Result:
Plaintiff (pedestrian) successful
Claim of contributory negligence dismissed
Damages awarded in the sum of $625,163.35
Representation:
Counsel:
Plaintiff: Mr G Droppert & Ms D J Davies
Defendant: Mr J R Brooksby
Solicitors:
Plaintiff: D G Price & Co
Defendant: Greenland Brooksby
Case(s) referred to in judgment(s):
Bird v McShea & Anor, (1999) 29 MVR 103
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bresatz v Przibilla (1962) 108 CLR 541
Commissioner of Railways v Ruprecht (1979) 142 CLR 563
Evers v Bennett (1982) 31 SASR 228
Jarvis‑Vagg v Eldrid, unreported; SCt of WA; Library No 970405; 15 August 1997
Jongen v CSR Ltd & Anor (1992) A Tort Rep 81-192
Kappos v Berghoffer (1990) 11 MVR 480
Lamb v Cotogno [1987] 164 CLR 1
Medlin v State Government Insurance Commission (1995) 182 CLR 1
Patullo v Thomas (1984) 1 MVR 359
Paul v Rendell (1981) 34 ALR 569
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
Pritchard v Evans, Pritchard v Evans (1996) 23 MVR 149
Stocks & Anor v Baldwin (1996) 24 MVR 416
Tsuji v Metromix Pty Ltd & Anor (1998) 28 MVR 401
Walker v McCall (1994) 20 MVR 146
Wheaton v Boylan & Anor (1991) 7 SR (WA) 338
Williams v Commissioner for Road Transport and Tramways (NSW) (1933) 50 CLR 258
Wilson v McLeay [1961] 35 ALJR 256
Case(s) also cited:
Bennett v Minister for Community Welfare (1992) 176 CLR 408
Bonnington Castings Ltd v Wardlaw [1956] AC 613
Bowen v Tutte (1990) A Tort Rep 81-043
Coyne v Citizen Finance Ltd (1991) 172 CLR 211
Hendrie v Rusli [2000] WASCA 202
Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254
Jorgensen v News Media Auckland Ltd [1969] NZLR 961
March v E & M H Stramare Pty Ltd (1991) 171 CLR 506
Marsland v Andjelic (1993) 31 NSWLR 162
Mickelberg v Director of Perth Mint [1986] WAR 365
National Insurance Company of New Zealand Ltd v Espagne (1961) 105 CLR 569
Patullo v Thomas (1984) A Tort Rep 80-626
Purkess v Crittenden (1965) 114 CLR 164
Ronci v Nationwide News Pty Ltd & Anor; Ronci v TVW Enterprises Ltd & Ors, unreported; FCt SCt of WA; Library No 960340; 21 June 1996
Still v Baldwin [2000] WADC 165
Stocks v Baldwin (1996) 24 MVR 416
Thomas v O'Shea (1989) A Tort Rep 82-251
Triggell v Pheeney (1951) 82 CLR 497
Tubemakers of Australia Ltd v Fernandez (1976) 50 ALJR 720
Van Gervan v Fenton (1992) 175 CLR 327
Watts v Rake (1960) 108 CLR 158
Wright v Shire of Albany (1993) A Tort Rep 81-239
Wylde v Arriaza (1997) 25 MVR 539
COMMISSIONER REYNOLDS:
The plaintiff was born on 19 April 1978 and is now 23 years of age. On 26 January 1997 when the plaintiff was 18 years of age she was injured in a traffic accident. At the time of the accident the plaintiff was a pedestrian and was struck by a motor vehicle driven by the defendant on Angelo Street ("the accident") just east of the intersection of Angelo Street and King Edward Street in South Perth ("the intersection"). The plaintiff was seriously injured as a result of the accident including in particular injuries to both legs and a closed head injury.
The plaintiff alleges that the accident was caused by the defendant's negligence and claims damages in relation to her injuries. The defendant denies that he was negligent and alleges that the accident was caused or at least contributed to by the negligence of the plaintiff. The defendant also denies that the plaintiff has suffered any loss, injury or damage. Further, the defendant has pleaded that any depression which may be found to be suffered by the plaintiff was not caused by the accident but rather issues arising in the plaintiff's personal life unrelated to the accident. Therefore both liability and quantum are in issue.
The pleadings on liability
It is alleged that the defendant was negligent in that he:
"(a)was driving at a speed which was too fast in the circumstances;
(b)failed to keep any or any proper lookout or to have any or any sufficient regard for pedestrians crossing the said road;
(c)failed to see the plaintiff in sufficient time to avoid colliding with her or at all;
(d)failed to give any or any adequate warning of his approach;
(e)failed to heed the presence of the plaintiff in the said road;
(f)failed to stop, to slow down, to swerve or in any way so as to manage or control his said motor vehicle as to avoid colliding with the plaintiff;
(g)was driving under the influence of alcohol contrary to Section 63(1) of the Road Traffic Act;
(h)was driving under the influence of cannabis; and
(i)was driving in a manner that was, having regard to all the circumstances, dangerous contrary to Section 59(1) of the Road Traffic Act."
The particulars of negligence and/or contributory negligence alleged against the plaintiff are:
"(a)The plaintiff was negligent in that she stepped out into the road without ensuring it was safe to do so.
(b)Failed to look to her left to observe the plaintiff's vehicle.
(c)Failed to take any care for her own safety.
(d)Failed to heed the presence of the defendant's vehicle on the road.
(e)Failed to keep any or any proper lookout."
The accident
On the evening of the accident the plaintiff, her boyfriend Yagya Schroeder, commonly known as "Chilo" ("Mr Schroeder") and a group of friends had attended the annual Skyshow and watched it from the South Perth foreshore. At the time of the accident the plaintiff and Mr Schroeder lived at the plaintiff's parents' home in South Perth which was a walk of about 20 minutes from the South Perth foreshore. After the Skyshow the plaintiff, Mr Schroeder and their friends were walking back to the plaintiff's home when she came to cross Angelo Street, South Perth. In the area about the accident site Angelo Street runs approximately east – west and King Edward Street runs approximately north – south. A traffic island is located in the middle of Angelo Street just east of the intersection. The western end of the traffic island ie, the end closer to the intersection, is about 10 to 12 metres from the eastern side of the intersection. The traffic island is 12.5 metres long. Angelo Street has a crest, which at its peak is 37 metres from the eastern end of the traffic island. A car travelling west on Angelo Street would travel uphill to the crest and then downhill towards the island and the intersection. At the time of the accident street lights were located on the northern verge at the crest of Angelo Street and the north west verge of the intersection. The speed limit in the area was 60 kilometres per hour.
Immediately before the accident the plaintiff and some of her friends had crossed from the northern verge of Angelo Street to the traffic island in the middle of Angelo Street to which I have referred. The defendant was driving his car, a 1984, 1 litre engine capacity, four‑wheel drive Suzuki Sierra ("the defendant's car") in a westerly direction on Angelo Street towards the traffic island. The plaintiff was struck by the front right (driver's side) corner of the defendant's car when she was on the roadway of Angelo Street just south of the traffic island.
The evidence relating to the accident
As a result of her injuries the plaintiff has no recollection of the accident.
Kelly Suzanne Michael ("Ms Michael") had met the plaintiff on a number of occasions but not many before the accident. Ms Michael said that she came to know the plaintiff because her mother used to visit the plaintiff's mother. She described the plaintiff as an acquaintance rather than a close friend and said that she had only seen the plaintiff once since the accident. On the day of the accident she met the plaintiff and others at the plaintiff's house and walked with them to the South Perth foreshore to watch the Skyshow. She walked alongside and talked with the plaintiff as they were returning to the plaintiff's house after the Skyshow.
Ms Michael gave evidence that after they arrived at the intersection they walked a slight way up (east) Angelo Street to a spot in line with the traffic island. They waited on the northern verge of Angelo Street because cars were travelling bumper to bumper up (east) Angelo Street. A car stopped to let them through and so they walked from the northern verge, across the east bound traffic lane of Angelo Street and stood on the traffic island. She said that while they stood on the island she described the traffic travelling up (east) Angelo Street as extremely slow moving and traffic travelling down (west) Angelo Street as being very slow. She said that the traffic was slow because there were literally hundreds of people around.
Ms Michael gave evidence that after she and the plaintiff came to stand on the island a group of people ran across the road to the verge on the southern side of Angelo Street. Both she and the plaintiff stayed on the traffic island. She indicated that she stayed on the traffic island because there were cars travelling down (west) Angelo Street approaching her from her left hand side. She said that as they stood on the traffic island the plaintiff was on her right hand side only centimetres away or possibly bumping shoulders with her. Ms Michael then looked to her right and added that this would have been out of habit because no cars would have been travelling towards her on the northern lane of Angelo Street.
Ms Michael said that she then looked left for a while and then back centre. She indicated that she and the plaintiff did not cross straight away and that she then looked to her left again. She said that as she looked back to her left nothing was coming and the plaintiff "had started to take a step off – she was about a step out" from the traffic island. She said that she then followed knowing that when she had just looked there was nothing coming. After she had taken one small step and definitely no more, she noticed a light out of the corner of her eye and, on turning her head slightly to her left, realised the light was from the headlights of a car. She said that she was unable to give an exact location of the car when she first saw its headlights. Her immediate impression from the brightness of the headlights was that the car was getting closer to her. She said that she then jumped backwards and looked in the plaintiff's direction when doing so. She said that when she looked in the plaintiff's direction it seemed as if the plaintiff was still close to her. She added that she would not say that at this point the plaintiff "would have been moving forward because she would have appeared to be even further away from me but she still seemed as if she was really close to me". Ms Michael said that after she jumped backwards she had just landed back on the traffic island when the car with the headlights on drove past her and she then heard "the most horrific noise you could imagine". She said that the plaintiff was not on the traffic island when she heard the noise. She also said that as the car went past her it felt as if it had only just brushed past her nose and that if she had put her arm out it would have been taken off.
In cross‑examination Ms Michael said that she did not know whether or not the plaintiff had taken a step back immediately before she was struck by the car. She repeated that the plaintiff seemed extremely close to her when the plaintiff was struck by the car. When asked if she knew whether or not the plaintiff took a second step away from the traffic island she said: "Well, she was a step ahead of me, so I would imagine that she would have been maybe another half a step, two steps ahead of me, depending on what — she would have been no more than two steps off the island." In re‑examination Ms Michael said that when she stepped off the traffic island the plaintiff probably was just finishing her first step.
Ms Michael said that she believes that when she and the plaintiff were standing on the traffic island that there were a few people standing to her left on the traffic island. There is a sign of some sort positioned 4.5 metres from the eastern end of the traffic island. Ms Michael gave evidence that when she and the plaintiff were standing together on the traffic island they were at the top (east) end and not the bottom (west) end of the island. She said that she cannot remember which side of the sign they were standing on.
At the time of the accident Stephen Alan Bond ("Mr Bond") was a front seat passenger in a car being driven by his girlfriend in an easterly direction on Angelo Street near the eastern end of the traffic island. He agreed that he was positioned approximately 37 metres west of the crest on Angelo Street. He described the traffic travelling east on Angelo Street as being "basically bumper to bumper all the way up the hill" and "very slow moving". He said that there were pedestrians strolling on footpaths on both sides of the road. He said that he did not notice any traffic heading west on Angelo Street until the car in question (the defendant's car) came over the hill. He said that the first thing he noticed about the defendant's car was its headlights. In cross‑examination he agreed that he would have seen the defendant's car shortly before it reached the crest on Angelo Street. He also said that he would have seen the defendant's car "from the time it got to the hill until the time it passed me and hit the person".
Mr Bond gave evidence that he has worked as a truck driver for the last seven years. He also said that he has raced road cars. He qualitatively described the speed of the defendant's vehicle as being "frightening for the circumstances of the area". He said it was "at least 70 to 80 k's an hour, a good 75, if you had to put a figure on it". In cross‑examination he agreed that he had an impression of speed because it happened so quickly. When asked how many seconds it took from the point where he first saw the defendant's to when he heard it collide with the plaintiff he said: "Seconds – 1, 2." Mr Bond also said that there was "not a hope in hell" that the defendant's car was doing between 40 and 50 (kilometres per hour) when it came over the crest on Angelo Street.
Mr Bond gave evidence to the effect that immediately before the plaintiff was struck he had observed a couple of people standing in the middle of the traffic island. He also indicated that when the plaintiff was struck the car he was in was adjacent to the most eastern part of the traffic island and the plaintiff was behind him. Mr Bond gave evidence that after the plaintiff was struck he noticed that she was lying in the intersection and that the defendant's car was right down the end of Angelo Street. Mr Bond gave evidence that he did not hear the sound of any car horn or braking immediately before the plaintiff was struck.
Mr Bond described the weather conditions on the night of the accident as "fine". He also described the area in which the accident occurred as being "quite light" because of the presence of street lights.
Michael James Harris ("Mr Harris") is 33 years of age and a cabinet maker. He has been driving motor vehicles since the age of 17 years. Mr Harris gave evidence that after the Skyshow he was walking in an easterly direction with his wife (fiancée at the time of the accident) and some friends on the footpath on the river side of Angelo Street east of the crest on Angelo Street. He said that there were people everywhere and that at least 100 people were on his side of Angelo Street wanting to cross to the other side. Mr Harris said that there were a few cars travelling east on Angelo Street. He and his wife walked to a median strip in the middle of Angelo Street just to the east of the crest on Angelo Street.
Mr Harris gave evidence that when he and his wife were on the median strip he instinctively pulled his wife back on hearing the loud revving of an approaching car. He said that the car was accelerating towards them and he estimated its speed to be about 70 to 75 kilometres per hour as it went west over the crest on Angelo Street. He added that thereafter the car's speed did not change much at all to the point where it struck the plaintiff. He also said that after the defendant's car went past his position "we sort of took, maybe one or two steps and then it had already hit something at the time". Mr Harris gave evidence that as soon as he heard a bang he looked in a westerly direction down Angelo Street and noticed that the car had actually travelled a bit closer to the middle of the road and towards the traffic island just east of the intersection. He indicated that after the car had struck the plaintiff it veered a little bit to the left and did not stop until it had travelled further down Angelo Street for about 30 seconds to a minute.
Fagmi Roman ("Mr Roman") was one of the group who attended the Skyshow with the plaintiff. He came to know the plaintiff as a result of his friendship with Mr Schroeder. Mr Roman said that after the Skyshow he was walking back to the plaintiff's house with a group which consisted of himself, his wife, the plaintiff, Ms Michael and two other girls. He said that they crossed the northern side of Angelo Street and stood on the traffic island near the intersection.
Mr Roman gave evidence that when he was standing on the traffic island Ms Michael was standing immediately to his right and the plaintiff was standing next to her. Mr Roman gave evidence that he was about to cross the southern side of Angelo Street but stood back on the traffic island upon noticing a car to his left coming down the hill. He said that Ms Michael stepped off the traffic island and then stepped back on to it. He also said that the plaintiff did the same as Ms Michael. The car passed him and he heard "a big bang". At that point in time he was not sure who had been struck. When asked about the speed of the car he said, "I can't say how fast, but what I do know is the lights, you know — I can tell by the lights, it was like a flash, you know, like one, two, three it has passed me."
Mr Roman gave evidence to the effect that he and his wife did not consume any alcohol at the Skyshow. He did not know whether or not the plaintiff had consumed any.
The defendant was born on 13 January 1975 and was 22 years of age at the time of the accident. On the evening of the accident the defendant had attended the Skyshow with two friends. He had earlier parked his car near Wesley College in South Perth. He said that he was not familiar with the South Perth area. After the Skyshow he returned to his car with his friends. He gave evidence that by this time he had consumed 10 to 12 cans of beer and smoked one cannabis cigarette. Later in cross‑examination it was put to him that he had earlier told Sgt Trevor Thorpe ("Sgt Thorpe") that he had smoked a couple of cannabis cigarettes that day. He said that he did not think that he would have told Sgt Thorpe that he had smoked more cannabis cigarettes than he had actually done so. The defendant then said in evidence that it was obviously not true that he had smoked one cannabis cigarette.
The defendant gave evidence that he knew as a general rule that he should not drive after consuming 10 to 12 beers. However, he said that on the night of the accident he thought that he was capable of driving. The defendant drove off with his two friends as passengers in his car. He came to be travelling in a westerly direction on Angelo Street.
The defendant gave evidence that before he arrived at the crest on Angelo Street he stopped his car because one of his passengers had dropped a cigarette in the car. He said that he then took off and proceeded up the hill and would have been in third gear approaching 60 kilometres per hour as he got near to the top of the hill. He said that he then saw a group of people further down Angelo Street crossing Angelo Street from his right to his left. He said that he continued driving down Angelo Street (in a westerly direction) at no more than 60 kilometres per hour. He then heard a crash and saw a shadow fly past his driver's side window. He said that he was surprised and asked one of his friends what it was and was told that it was a person. He said that after the accident he was a bit shocked and annoyed. He added that he was just driving along after having had a good night and someone stepped in front of his car. He said that he was a bit distraught, angry and confused. He said that his car was right of the middle of the carriageway as he travelled down the hill.
In cross‑examination the defendant said that he did not know how far it was from the crest on Angelo Street where had stopped for his friend to pick up the cigarette. He said that he accelerated all the way from where he had stopped to the point of the accident. He added that he was going through the gears slowly and continuing to gain speed. When it was put to the defendant that he had earlier stated that he gained 20 kilometres per hour from the crest of the hill to the point of impact he said, "If I said that, then I said that" and "it sounds okay". He also said, "I don't believe I was going over 60". He agreed that he had told Sgt Thorpe on the night of the accident that he was travelling at 35 (kilometres per hour). He said that this was a misjudgement and that it felt like he was travelling at 35. The defendant agreed that when he later spoke with Sgt Thorpe within a week of the accident he said that he was doing 60 to 65 (kilometres per hour). He agreed with the suggestion that on this later occasion he thought that he should give a bit of ground and try and find a mid‑point. When giving evidence he said that he could not say whether 60 to 65 (kilometres per hour) was too fast in the circumstances because he did not know the surrounding circumstances because he was not paying attention.
The defendant gave evidence that when he saw people crossing Angelo Street from his right to left his attention stayed on them but he continued to look ahead through the windscreen as he proceeded down Angelo Street. The defendant gave evidence that he does not recall seeing any people on the traffic island.
The defendant agreed that he pleaded guilty to charges of driving under the influence and dangerous driving causing grievous bodily harm arising from the accident.
Sgt Thorpe works in the major crash investigation section of the Police Department. He attended the scene of the accident about one and a half hours after it had happened. He had a conversation with the defendant just after midnight on 27 January 1997. He said that during this conversation the defendant told him that he did not know what his speed was at the time of the accident but that it was about 35 (kilometres per hour) and that he had smoked a couple of joints, but only leaf, before the accident. Sgt Thorpe gave evidence that he spoke with the defendant again on 3 February 1997. Sgt Thorpe said that on this occasion the defendant told him that he was travelling at 60 to 65 (kilometres per hour) at the time of impact. He said that the defendant also told him that he did not know if speed was a factor in the accident and that he did not know where the plaintiff had come from. Sgt Thorpe also said that the defendant told him on this occasion that he was looking ahead slightly to the left at people who had just crossed the road.
Sgt Thorpe gave evidence that a breath analysis conducted on the defendant showed that he had a blood alcohol reading of .195 per cent at the time of the test calculated to .179 per cent at the time of the accident using 9.22 pm as the time of the accident. A blood sample taken from the defendant produced a reading of 36 micrograms per litre of carboxytetrahydrocannabinol. No issue was taken with either of these analysis results.
Robin Griffin ("Mr Griffin") is a paramedic employed by St John's Ambulance Service. He attended at the scene of the accident and assisted in conveying the plaintiff to Royal Perth Hospital. He prepared a Patient Care Record which included a history taken at the scene of the accident. The history included reference to the vehicle involved in the accident travelling at 40 to 50 kilometres per hour.
Mr Schroeder is 31 years of age and has known the plaintiff for eight years. At the time of the accident he lived at the plaintiff's parents' house in South Perth. He gave evidence that he left the plaintiff's parents' place with the plaintiff and friends at about 3.30/4.00 pm to walk to the South Perth foreshore to see the Skyshow later in the evening. He said that when he and the rest of the group were walking back to the plaintiff's parents' house after the Skyshow there were "heaps" of people around.
Mr Schroeder gave evidence that he crossed Angelo Street ahead of others in the group and that when he reached the southern verge of Angelo Street others, including the plaintiff, were on the traffic island. Mr Schroeder did not see the accident happen. He saw a light, heard people screaming and then turned and saw the plaintiff in the middle of the intersection. He went to Royal Perth Hospital in the ambulance with the plaintiff. He said that he cannot recall telling an ambulance officer what had happened. In particular he said that he did not think that he told an ambulance driver that the car was travelling at 40 to 50 kilometres per hour when it struck the plaintiff. He also said that he cannot recall telling an ambulance officer that the plaintiff had had quite a bit to drink that night. Mr Schroeder gave evidence that he is a Muslim and that January is the month of Ramadan during which Muslims, including himself, are not allowed to eat during daylight hours or consume intoxicating drinks. He gave evidence that the plaintiff consumed alcohol and at times got drunk outside Ramadan but did not consume alcohol during Ramadan. He said that he did not see the plaintiff drink on the night of the accident.
Analysis and conclusions on liability
Having considered all of the evidence and in particular having considered the evidence of Ms Michael in light of the evidence as a whole I find Ms Michael to be a very credible and reliable witness. Indeed of all of the witnesses who gave evidence on the issue of liability she impressed me the most. I accept her evidence and find that before she stepped off the traffic island and onto the northern side of Angelo Street she waited for some cars travelling west on the northern side of Angelo Street to pass. She looked to her left again and ascertained, and rightly so on my assessment of all of the evidence, that no car was travelling west down the hill on Angelo Street towards her. These are crucial findings. I also accept her evidence and find that she and the plaintiff stood on the traffic island together and that the plaintiff was standing immediately to her right. The plaintiff had taken a step off the traffic island and onto the northern side of Angelo Street before Ms Michael stepped onto the northern side of Angelo Street. It follows from all of this that the defendant's car was on the eastern side of the crest on Angelo Street and not in sight when the plaintiff stepped off the traffic island onto the northern side of Angelo Street.
I accept the evidence of Mr Roman that both Ms Michael and the plaintiff after having stepped off the traffic island onto the northern side of Angelo Street both stepped back. He was right when he said that Ms Michael stepped back onto the traffic island but honestly mistaken in thinking that the plaintiff also made it back to the traffic island. Ms Michael did not expressly state that the plaintiff stepped back but she did say that the plaintiff seemed really close to her and that the defendant's car went by her such that if she put her arm out it would have been taken off. I accept the evidence of Mr Harris that the defendant drove very close to the traffic island. The defendant himself said that he drove right of the middle of the road. I also find that the plaintiff was struck by the right front corner of the defendant's car. I conclude from all of this that the plaintiff took two steps off the traffic island onto the northern side of Angelo Street and then became aware of a car (the defendant's car) approaching. She then decided to step back to or at least towards the traffic island to get out of the way of the car or to get to safety but only managed to get to within a step of the traffic island and was struck by the defendant's car.
I wish to add that I have reached these findings having taken into account the evidence of Mr Roman including his evidence that he stood on the traffic island with Ms Michael and the plaintiff before the accident and that when he was on the traffic island he looked to his left, saw a car (the defendant's car) and decided not to cross.
Although Mr Roman said "we" were about to cross the road and "we" saw the car coming, he cannot say what Ms Michael and/or the plaintiff actually saw, if anything, and nor can he speak for either of them on why they waited on the traffic island before each of them stepped off it when they did. I accept Ms Michael's evidence that she waited on the traffic island for some cars travelling west on Angelo Street to pass by the traffic island before she stepped off it. Mr Roman made no mention of these cars. Mr Roman was not asked when Ms Michael and/or the plaintiff stepped off the traffic island onto the northern side of Angelo Street relative to when he first saw the car (the defendant's car to his left). Further to all of this and in any event, I found Ms Michael's to be a most impressive witness and, as mentioned, I accept her evidence that before she stepped off the traffic island she checked to her left and no car was coming.
I also wish to add that I have reached these findings taking into account all of the evidence in relation to speed. I found the defendant to be very unimpressive on the issue of speed and generally. I have no hesitation in rejecting his evidence that he was travelling at less than 60 kilometres per hour at the time his car struck the plaintiff. He gave too prior inconsistent accounts of his speed to Sgt Thorpe, namely about 35 kilometres per hour and 60 to 65 kilometres per hour. His consumption of alcohol and smoking of cannabis prior to the accident would likely have impaired his judgment leading up to and at the time of the accident and also his ability to accurately recall details later. Further, his demeanour in the witness box was totally lacking in credibility.
In light of the combination of the evidence of Mr Harris and Mr Bond on speed and the defendant's evidence that he continued to accelerate from the position where he had stopped east of the crest on Angelo Street to the point of impact and that he gained 20 kilometres per hour from the crest on Angelo Street to the point of impact I find that the defendant was travelling at a speed of at least 70 kilometres per hour at the crest on Angelo Street and in excess of 80 kilometres per hour but no more than 90 kilometres per hour at the time his car struck the plaintiff.
70 kilometres per hour is equivalent to about 19.4 metres per second and 80 kilometres per hour is equivalent to about 22.2 metres per second. Accepting Ms Michael's evidence that she and the plaintiff stood towards the eastern end of the traffic island and having regard to the evidence that the traffic island was 12.5 metres long and that it was 37 metres from its eastern end to the crest on Angelo Street, I find that the plaintiff would have been about 37 to 43 metres from the crest on Angelo Street when she stepped off the traffic island onto the southern side of Angelo Street.
On my finding on the defendant's speed it would have taken him only about two seconds to travel the distance from the crest on Angelo Street to where his car struck the plaintiff.
I attach no weight to the evidence on the hospital admission form that the car (the defendant's car) was travelling at 40 to 50 kilometres per hour. It is not open to conclude that Mr Schroeder gave this information to Mr Griffin, the ambulance officer. Indeed, accepting that he was given this information there is no evidence that reliably shows who told him. It is hearsay from an unknown person which could not be tested and is inconsistent with direct evidence given by witnesses at trial including the defendant.
My finding on the defendant's speed is consistent with the evidence of Mr Harris that after the car went past he and his wife may have only taken one or two steps before he heard an impact. It is also consistent with the evidence of Ms Michael that she only took two steps, one forward and then one back, between commencing to step off the traffic island and the defendant's car striking the plaintiff.
Counsel for the defendant has submitted inter alia that:
"1.just as the defendant approached or reached the traffic island the plaintiff took one to two steps into the road;
2.the accident occurred a split second after the plaintiff had stepped into the road;
3.the defendant has no possible means of avoiding the plaintiff."
I respectfully reject all of these submissions. There is no direct evidence that the accident happened within a split second or less than a second of the plaintiff stepping off the traffic island. Further, it is not open on my findings of fact to infer that it happened this way. Quite obviously more time would have elapsed between the plaintiff stepping off the traffic island and being struck than between Ms Michael stepping off the traffic island and the plaintiff being struck.
There is no direct evidence on how much time elapsed between the plaintiff stepping off the traffic island and being struck. However, accepting the accuracy of the evidence of Ms Michael that no car was to be seen approaching her on Angelo Street from her left before she stepped off the traffic island, that the plaintiff had already taken a step off the traffic island onto the southern side of Angelo Street before Ms Michael stepped off the traffic island, my findings on the speed of the defendant's car, and my finding that the plaintiff took two steps off the traffic island and then appreciated danger and decided to take and took one step back before being struck by the defendant's car, I consider it highly likely and find that the best part of at least three seconds elapsed from when the plaintiff stepped off the traffic island to when she was struck by the defendant's car.
In my view this is clearly not a case of a pedestrian taking one or two steps forwards onto a road and into the path of an oncoming car a split second before being struck by the car and giving the driver of the car no possible means of avoiding the pedestrian.
I find that on the evidence of Ms Michael, Mr Harris, Mr Bond and Mr Schroeder, after the Skyshow had concluded there were numerous pedestrians and many cars in the vicinity of Angelo Street both east and west of the crest on Angelo Street at the time of the accident. Traffic travelling west on Angelo Street at the time of the accident and near where the accident occurred was light. Traffic travelling east on Angelo Street near the intersection was bumper to bumper. In circumstances such as these even the speed limit of 60 kilometres per hour would have been too fast.
In my view the defendant was clearly negligent. He drove at an excessive speed in the circumstances. He was under the influence of alcohol and cannabis at the time to such an extent that he could not have properly controlled his car. He admitted that he was not paying attention and that he did not see the plaintiff before his car struck her. He drove too close to the traffic island. Having failed to observe the plaintiff he took no action to avoid striking her with his car. His negligence caused his car to strike the plaintiff and seriously injure her.
I now turn to the issue of contributory negligence. The defendant carries the burden of proof in establishing the alleged negligence of the plaintiff: see Williams v Commissioner for Road Transport and Tramways (NSW) (1933) 50 CLR 258 at 264.
The standard of care required of the plaintiff was the care for her own safety as that of a reasonable person engaged in ordinary activity requiring no special skill and only ordinary concentration and exposing her to no danger beyond the commonplace danger involved in being a pedestrian on a public road: see Evers v Bennett (1982) 31 SASR 228 per King CJ at 229 cited with approval in Wheaton v Boylan & Anor (1991) 7 SR (WA) 338 at 347 – 348.
In Commissioner of Railways v Ruprecht (1979) 142 CLR 563 at 570 Mason J noted the difference between negligence and contributory negligence:
"Contributory negligence differs from negligence. There is no duty of care owed to another person (Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611); and contributory negligence involved conduct which exposes the actor to the risk of injury without necessarily exposing others to risk."
The principles governing apportionment of liability are well settled. In Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492 at 494, the High Court held:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involved a comparison both of the culpability, ie, of the degree of departure from the standard of care of the reasonable man (Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre (1958) Tas SR 26 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219 and the cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
There is a higher duty of care placed upon a driver of a motor vehicle in comparison with the obligation of a pedestrian to take reasonable care for his or her own safety. There is good reason for this approach. A motorist driving without due care and attention can cause significant injury to a pedestrian whereas a lack of care by a pedestrian is not likely to cause any or any significant injury or damage to others. See Patullo v Thomas (1984) 1 MVR 359, 360; Walker v McCall (1994) 20 MVR 146 at 149 and Stocks & Anor v Baldwin (1996) 24 MVR 416 at 418.
In my view the plaintiff is not guilty of any contributory negligence at all. I am satisfied and find that the defendant's car was east of the crest on Angelo Street and not visible to the plaintiff immediately before she stepped off the traffic island onto the southern side of Angelo Street.
I think it fair to say that in some circumstances it is possible to see the glow of the headlights of a car approaching on the other side of a hill before the car itself or any part of it actually comes into sight. Obviously the gradients on each side of the crest of the hill and the level of other lighting in the area are factors which influence whether or not an approaching car or part of it can be seen in such a situation. In this case photographs in evidence show that the gradient on the eastern side of the crest on Angelo Street is not steep and that in daylight a person standing on the traffic island looking east would be able to see part of a car travelling west on Angelo Street before it reached the crest on Angelo Street. However a car in the same position at about 9.20 at night with a street light on at the crest on Angelo Street may not be visible to a person in that position. I repeat my reasons and findings that the defendant's car was not in sight when the plaintiff stepped off the traffic island onto the southern side of Angelo Street.
This leads me to examine whether or not the plaintiff should have noticed the approach of the defendant's car before she did. Cars travelling in the south lane on Angelo Street should only travel west and so if any car was in that lane then it should have been approaching the plaintiff from her left. Even if the plaintiff did not continuously look to her left from the time that she stepped off the traffic island, and I hasten to add that there is no evidence that she did or did not do so, she could not be reasonably expected to have done so. First, while a person should perhaps pay greater attention to the direction from where a danger is most likely to come from it is also necessary to be generally aware. Secondly, no person in the plaintiff's position on the night of the accident could be reasonably expected to have foreseen that a car would be driven west over the crest on Angelo Street at the speed and with acceleration as the defendant did on the night of the Skyshow when so many pedestrians and cars were in the vicinity.
In this case the fact of the matter is that it would have only taken the defendant about two second to travel from the crest on Angelo Street to where his car struck the plaintiff. Within that time the plaintiff appreciated the danger and took a step back towards the traffic island in an attempt to get to a safe position. In my view the plaintiff did nothing wrong and could not be reasonably expected to have done anything more than she did in the circumstances.
There is no reliable evidence that the plaintiff consumed any or too much alcohol during the day before the accident. I am not satisfied that the plaintiff was adversely affected by alcohol at all at the time of the accident.
It is trite to say that each case falls to be decided on its own set of facts. Counsel for the defendant has relied on a number of cases including Pritchard v Evans, Pritchard v Evans (1996) 23 MVR 149; Bird v McShea & Anor, (1999) 29 MVR 103; Kappos v Berghoffer (1990) 11 MVR 480; Stocks & Anor v Baldwin (supra) and Tsuji v Metromix Pty Ltd & Anor (1998) 28 MVR 401. This case can be distinguished from every one of those cases on the facts.
For all these reasons I find that:
1.the defendant was negligent and that his negligence caused the accident; and
2.that the plaintiff is not guilty of any contributory negligence.
The medical evidence and the plaintiff's injuries
The plaintiff was taken by ambulance to Royal Perth Hospital on 26 January 1997. In a report dated 30 June 1998 Dr Dare for and on behalf of the Director of Clinical Services, Royal Perth Hospital stated inter alia:
"On examination there was a laceration on the left ear and a star shaped laceration over the occiput. There were multiple abrasions on the arms and legs. There was swelling at the left knee and bruising at the pelvis. An urgent CT scan was performed and this showed a closed head injury with moderate swelling and contusion of the posterior parietal lobe on the right. Xrays of the pelvis showed a fracture of the pelvis. Xrays of the knee showed a fractured left fibula and tibial plateau. She also suffered a ruptured left anterior cruciate ligament and medial collateral ligament. She was admitted into hospital and managed initially in the Intensive Care Unit. Her 12 day course there was complicated by a chest infection. This was treated with appropriate antibiotics. She required assisted ventilation and was able to be extubated on 12.02.98.
On 15.02.97, she was transferred to the Royal Perth Rehabilitation Unit and on arrival there, she was orientated but had short term memory loss and problems with higher functioning. She underwent multidisciplinary rehabilitation and by time of discharge was fully independent with activities of daily living. She no longer required crutches or a knee brace. She made significant gains in memory and processing although still had some higher level functioning problems. She was discharged on 20.03.97."
On 18 March 1997 x‑rays of the plaintiff's right knee were taken at Royal Perth Rehabilitation Hospital which showed a fracture of the head of the fibula, with proximal displacement of a fragment.
The plaintiff suffered significant injuries. In summary they can be described as left and right knee injuries, a pelvis fracture and a closed head injury. There was no issue between the parties at trial that the plaintiff sustained a head injury with some permanent damage to the brain. The key issue in dispute in relation to the plaintiff's head injury is whether or not it affects her functioning.
The plaintiff's knee injuries
Mr Prosser, an orthopaedic surgeon, treated and managed the plaintiff's knee injuries. In a report dated 7 December 1999 Mr Prosser stated inter alia that the left knee injury involved various fractures and ligament injuries. X‑rays showed a fracture of the head and neck of the fibula, a fracture of the margin of the lateral tibial plateau and an avulsion fracture at the insertion of the anterior cruciate ligament to the tibia. The fractures were treated conservatively. The ligament injuries involve the anterior cruciate ligament and the medial collateral ligament. The ligament injuries were also treated conservatively with the plaintiff wearing a knee brace for the first six weeks after the accident. Eventually in November 1997 due to ongoing insecurity with the left knee the plaintiff had surgery to reconstruct the anterior cruciate ligament. This surgery left a scar on the plaintiff's left knee.
Mr Prosser noted in his report dated 7 December 1999 that there was some residual laxity of the anterior cruciate ligament and still significant laxity of the medial ligament. He added that the important rotational stability was well controlled following the ligament reconstruction. He stated that further surgery could be considered to tighten the medial collateral ligament.
The plaintiff's right knee was grossly displaced anteriorly. As mentioned there was a fracture of the head of the fibula with proximal displacement of a fragment. Mr Prosser stated in his report dated 7 December 1999 that he could feel a bony lump at the posterolateral aspect of the knee in the biceps muscle. He also stated that the right knee has ligamentous laxity involving the anterior cruciate and lateral collateral ligaments. The plaintiff had complained to Mr Prosser that her right knee gave way and also moved forward abnormally. Mr Prosser stated that further management could include appropriate imaging with a view to surgery for arthroscopic assessment of the knee, excision of the bony lump and possibly ligament reconstruction.
Mr Prosser stated in his report dated 7 December 1999 that in the right knee there is a 25 per cent permanent disability of the leg above the knee. He also stated that in the left knee there is a 30 per cent disability of the leg above the knee. He added that these assessments of permanent disability included an element for the risk of the plaintiff developing degenerative changes. He stated that the plaintiff is at risk of degenerative osteoarthritis in both knees as a consequence of the ligament injuries. The left knee is also at such risk because of the fractures involving the joint surface.
Dr Merrick has practised as a rehabilitation specialist for about 35 years. He came to take care of the plaintiff in his capacity as a rehabilitation specialist at the Shenton Park Campus of Royal Perth Hospital. Dr Merrick gave evidence that it was inevitable that the plaintiff would suffer from the onset of osteoarthritis in her left knee in the next five to 10 years. Dr Merrick also expressed the view that the plaintiff's right knee injury would result in degenerative changes.
Pelvis injury
Mr Prosser stated in his report dated 7 December 1999 that early x‑rays showed relatively undisplaced fractures involving the left side of the sacrum and the left pubic rami. The plaintiff's pelvis (hip) injury was treated conservatively. X‑rays taken in February 1997 showed only minor separation at the fractures. The plaintiff reported occasional discomfort at the lumbosacral junction but no pain in the groins or hips. Her gait pattern is normal and both hips have a normal range of movements.
The plaintiff's head injury
Dr Merrick has reported on and given evidence on the extent of the plaintiff's brain injury. In a report dated 2 October 2001 he stated inter alia:
"The early CT scans done in January 1997 show the severe nature of the brain injury sustained in the form of subdural haematoma (SDH) over the convexity of the right side of the brain and generalised brain swelling.
Following resolution of the brain oedema including SDH, CT scans in early February 1997 showed right anterior temporal gliosis and cortical involutional changes (ie post traumatic atrophy).
The MRI examination of the brain done on 28 March 2000 confirms the presence of post traumatic atrophy.
I have scrutinised these films; they show cortical atrophy in keeping with the cognitive and emotional aftermath of her injury."
Dr Merrick gave evidence that cortical atrophy means that there has been a loss of cortical neurons. He added that the fact that the presence of atrophy could be seen on a film of the plaintiff's brain means that there is a significant loss of cortical neurons. He said that such loss did not correlate well with clinical features but was consistent with either cognitive loss or emotional upheaval or both.
In a report dated 19 May 2000 Dr Merrick stated inter alia:
"The CT head scan done in February 2000 showed possible increase in size of sulcal and ventricular spaces: because of this an MRI was done which confirms the presence of marginal prominence of these same spaces. It should be regarded as a marker that actual brain damage has occurred and this consists of:
•Subtle effects on intellectual and mnestic function at a significant level.
•Fragility of emotional control and variable depression of mood, for which she has required prolonged supportive psycho-therapy and anti‑depressant medication in the form of Cipramil."
In the same report Dr Merrick expressed the view that the plaintiff's cognitive and emotional residua are likely to be permanent. He gave evidence that the only marked or possible cognitive loss in the plaintiff's case is the fact that she is performing below what he would have expected her to perform and that there is a discrepancy between her verbal and performance intelligence quotient levels. He assessed the plaintiff's abnormalities at a "marginal, subtle" level. He said that it would manifest itself in neuropsychological tests and also in testing situations in ordinary, everyday life.
Dr Merrick gave evidence on fatigue and depression in the context of brain injury. He said that physical fatigue is a very common symptom following a reasonably severe head injury. He also said that fatigue is a prime symptom of depression. He noted that the plaintiff was taking Cipramil to treat her depression and said that fatigue was a side effect of using Cipramil. Dr Merrick said that the vast majority of people who have fatigue due to the actual brain injury itself get over the fatigue within the first year or two. He said that the plaintiff was probably fatigued because of her depression and the treatment of her depression. He considered this to be unavoidable.
Dr Merrick was of the firm view that the plaintiff was cognitively impaired, albeit to a subtle extent, as a direct result of her brain injury. He agreed with the proposition that while the plaintiff has made a good cognitive recovery she has not made a complete cognitive recovery. He disagrees with the view expressed by Dr Hunt, a clinical neuropsychologist, that the plaintiff has no significant loss of cognitive function. One reason he gave for reaching this conclusion is that the plaintiff's abnormalities relate to verbal abilities rather than across the board. In his opinion the level of the plaintiff's cognitive impairment as a direct result of her brain injury has stabilised.
Dr Merrick also gave evidence that depression itself causes abnormality of cognitive function. He said that in the plaintiff's case her cognitive function fluctuates according to her level of depression and that her depression is due to her brain injury. He also indicated that the plaintiff's depression is at times compounded by her reaction to past and present situations of stress within her life eg, an unstable family background including the separation of her parents when she was 16 years of age, the death of her father in April 1999 and her increased responsibility in her workplace after his death. Dr Merrick gave evidence that depression in the setting of brain damage is difficult to treat and resistant to treatment. He said that at the moment the plaintiff's depression is responding well to Cipramil and that her current dosage was only halfway towards the maximum that could be prescribed in her situation.
While mindful that the plaintiff's intake of Cipramil would remain under review Dr Merrick expressed the view that it is unlikely that the plaintiff is going to get any better in the future than she is now. He indicated that even if the plaintiff's depression comes under reasonable control she will still have problems because of actual cognitive damage which cannot be treated. Dr Merrick was aware of the results of neuropsychological testing conducted by Mr Hunt. Indeed it was Dr Merrick who was ultimately responsible for referring the plaintiff to Mr Hunt. Dr Merrick did not take issue with any of the test results recorded by Mr Hunt. However he disagrees with Mr Hunt's interpretation of the results or at least some of them. The basis for the disagreement lies in their respective assessments of the level of the plaintiff's premorbid functioning.
In essence Dr Merrick is of the view that the plaintiff has not reached her premorbid potential. In his opinion the results of the plaintiff's scaling test when she did her TEE and the fact that she was successfully performing at the University of Western Australia put her "in the above average range" and is indicative that she was "a pretty smart cookie" and "fairly bright" before the accident. Dr Merrick was therefore of the view that the plaintiff's average or below average results in the neuropsychological tests conducted by Mr Hunt were consistent with cognitive impairment. He said that Mr Hunt's test results showed that the plaintiff was in the low 90's for verbal IQ and about 110 for performance IQ. He said that she would have had to have been much higher than that to have been effective at the University of Western Australia. On the other hand Mr Hunt is of the view that some of the plaintiff's neuropsychological test results indicate that her premorbid functioning was only in the average range albeit it on the higher side. This is a key factor in Mr Hunt's assessment that the plaintiff has no significant loss of cognitive function.
Dr Merrick gave evidence that the plaintiff does not have an expressive dysphasic problem. Aphasia is the total loss of symbolic use of language characterised by a breakdown in grammar, syntax, fluency and content. Dysphasia is the partial loss of symbolic use of language. Dr Merrick gave evidence that if the plaintiff had an expressive language disorder involving things like language and grammar then it would have been found well before now. Dr Merrick stated in a report dated 12 June 1997 that the plaintiff had "low volume husky dysphonia". This affected the force with which the plaintiff is able to speak and the way in which she is able to alter her tone of voice. This problem may well be related to the fact that the plaintiff needed tracheostomy for protection of her airways when she was initially treated.
Mr Hunt has practised as a clinical neuropsychologist for about 22 years. Clinical neuropsychology involves the objective measurement of cognitive impairment which is one aspect of brain dysfunction. Such measurements are undertaken by administering various tests, interpreting the test results and taking into account the history of the injury and the injured person. Mr Hunt works as a clinical neuropsychologist at the Shenton Park Campus of Royal Perth Hospital, conducts a small private practice and lectures in the course on clinical neuropsychology at the University of Western Australia. After two consultations, one 19 weeks post‑accident and the other 13 months post‑accident, Mr Hunt is of the view that the plaintiff does not have any sort of substantial cognitive or intellectual functioning problem. He gave evidence that the plaintiff's scores on all of the tests administered by him within the intelligence test suggested that her premorbid verbal abilities would have been about the average range which he thought would put her at a bit of a disadvantage coping with tertiary studies. He added that that was not to say that the plaintiff could not cope with tertiary studies but rather she would have to put in a lot of effort to complete the requirements of such a course.
It is clear from all of the evidence that the assessment of the plaintiff's premorbid functioning is crucial in determining whether she has any cognitive impairment directly related to her brain injury. Mr Hunt's assessment that the plaintiff's premorbid functioning was in the average range albeit to the high side is a key factor in him concluding that the plaintiff has made a "very, very good cognitive recovery". In essence he is of the view that average or about average results by the plaintiff on various tests is consistent with average premorbid functioning and indicative that she has no significant cognitive impairment as a direct result of her brain injury. Mr Hunt is also of the view that depression resulting from poor self‑ confidence, low self‑esteem and the like is affecting the plaintiff's cognitive functioning.
On the first occasion that Mr Hunt saw the plaintiff he administered a shortened version of the Wechsler Adult Intelligence Scale test ("WAIS Test"). The results of a pro-rated verbal IQ of 90 and a pro‑rated performance IQ of 90 were described by Mr Hunt as being within the average range. He said that he would have expected the results to have been a little bit higher for someone who had been to university. The WAIS Test has a number of sub‑tests, namely vocabulary, arithmetic and comprehension. None of these were administered by Mr Hunt because the purpose of Dr Merrick referring the plaintiff to Mr Hunt was to examine whether the plaintiff's cognitive functioning at that point in time would enable the plaintiff to return to work and also return to driving.
Mr Hunt administered a number of other tests when he first saw the plaintiff. The Wechsler Memory Scale produced an above average result of 115. The average on this test is 100. Mr Hunt was of the view that the plaintiff lacked political knowledge before the accident and that this would have caused a reduction in her memory quotient. He said that experience showed that the memory quotient should be a few points higher than the WAIS Test verbal IQ and so the plaintiff's result of 25 points higher was very satisfactory. A test to show the plaintiff's short‑term memory produced a result on the high side of average.
The plaintiff showed quick and effective learning on a word association test. She scored 100 per cent on a test requiring recall of simple geometric designs. Her results on a test requiring recall of complex graphic figures was poor and at the 15th percentile which Mr Hunt correlated with her right hemisphere still being a little bit dysfunctional at that point in time. Mr Hunt said that such a test could also present problems for a person with left hemisphere deficits. The plaintiff performed poorly in a sub‑test on general knowledge. Mr Hunt thought that it was unlikely that her poor performance was due to the nature of her head injury. He said that in most head injured people tests such as general knowledge and vocabulary are not affected because the person is tapping very old well learnt knowledge, and barring conditions where there is a marked dysphasic disorder where the person might know the answer but for reasons of language impairment is not able to get it out, the test is considered very robust. He said that a person does not lose the sort of knowledge sought in the test as a result of a head injury. He also said that the general knowledge sub‑test was one measure of premorbid functioning but added that in the plaintiff's case given that she had been to university and had passed TEE with a score of 350 it was only indicative of her having a rather poor general knowledge.
There needs to be a discount to reflect the remote chance that the plaintiff would not have completed a degree, would not have earned while caring for a family, would not have worked to age 65 years, that the plaintiff and her three sisters would not sell or would delay the sale of Bayswater Building Hire and that the plaintiff would continue working and earning an income from it, that the plaintiff would have had periods of unemployment and that the plaintiff may in the future be employed by benevolent employers in part‑time positions. I also make an allowance for some saving in cost of earning the income.
Weighing all of these contingencies both positive and negative I discount the future loss by 15 per cent. For all these reasons I award damages for future loss of earning capacity in the sum of $427,609.
Future medical treatment, pharmaceutical expenses and associated travel expenses
The plaintiff will require anti‑depressant medication such as Cipramil indefinitely. At the moment she takes one and a half tablets (30 mg) per day and both Professor Burvill and Dr Febbo think that this dosage should be increased. Dr Merrick said that an increase in the dosage could lead to adverse side effects. I think that the plaintiff is not keen on taking anti‑depressant medication and at times will avoid taking it.
Doing the best I can I allow the sum of $2,500 for future pharmaceutical expenses.
The plaintiff will need to attend on a rehabilitation specialist, psychiatrist and general practitioner on an ongoing basis. Professor Burvill said that the plaintiff would need to see a psychiatrist four to six times per year at a current cost of about $150 per visit. The plaintiff also requires a course of intensive speech pathology at a cost of about $600 and thereafter reviews by a speech pathologist.
The plaintiff impressed me as the sort of person who would want to be as independent as she possibly could and rightly or wrongly will often assess and attempt to resolve her own problems in her own ways before seeking professional help. I should add that intensive professional help is not going to result in any material increase in her earning capacity. Therefore I think that as time goes by her attendances on health professionals will tend to decrease. The plaintiff will no doubt incur some travelling expenses to get to and from appointments.
Doing the best I can I allow the sum of $10,000 for ongoing consultations with medical practitioners and a speech pathologist and associated travel and expenses.
In a report dated 13 August 2000 Mr Prosser stated inter alia:
"In the right knee, there was a bony lump at the posterolateral aspect of the knee for possible removal. Arthroscopic assessment of the knee would be useful. There were loose lateral collateral and anterior cruciate ligaments which could be considered for reconstructive surgery. If surgery were undertaken, a possible plan would be to combine an arthroscopy, excision of the bony lump and reconstruction of the posterolateral ligaments into one procedure. The cost of excision of the bony lump alone is estimated at $2,200. The addition of an arthroscopy and lateral collateral ligament reconstruction would add $2,800. Anterior cruciate ligament reconstruction would probably be done on a separate occasion, with an estimated cost of $4,500.
In the left knee, the residual problem was laxity of the medial collateral ligament, and assessment of any residual intra‑articular problems. The surgery to consider would be an arthroscopy, followed by an open advancement of the medial collateral ligament. The estimated cost if $4,500."
There is no certainty that any or all of these procedures will be performed. If any of them are performed then there will no doubt be follow-up with some physiotherapy and possibly the need for crutches. I allow the sum of $7,500 to cover the chance of some or all of these procedures being performed.
For all of these reasons I award the sum of $20,000 for future medical treatment, pharmaceutical expenses and associated travelling expenses.
Special damages
Special damages are agreed in the sum of $19,290.25 and I award that sum.
Gratuitous services
The plaintiff has claimed the sum of $40,540.17 for past gratuitous services including an allowance pursuant to Wilson v McLeay [1961] 35 ALJR 256 for the period 27 January 1997 to February 2001 inclusive. The claim is based on 40 hours per week from 27 January 1997 to 30 June 1997, 14 hours per week from 1 July 1997 to 5 November 1997, 20 hours per week from 5 November 1997 to 5 January 1998, 14 hours per week from 5 January 1998 to February 1999, 10 hours per week for the year thereafter and five hours per week for the year after that.
The plaintiff was discharged from hospital and returned home on 21 March 1997. Members of her family were constantly by her side while she was in hospital. I am not satisfied that their presence was necessary to ensure that the plaintiff received proper care. In my view it was to fulfil their natural desire to be close to a loved one. I hasten to add that this finding reflects no criticism at all of the plaintiff's family and I have no doubt that their presence provided much emotional support to the plaintiff when she was conscious. There is no evidence of any family member sustaining any loss or incurring any expense to attend the hospital.
In the month or so before the plaintiff was discharged from hospital she spent about three or four weekends at home. During these home visits she used a wheelchair and generally lived in a downstairs section of the house. The bathroom, toilet, kitchen and family areas of the house were upstairs and she needed help to get upstairs generally and particularly to get to the bathroom and toilet.
While I have no doubt at all on the honesty of Mrs Wickham, Paula Wickham and Mr Schroeder I find that their evidence on the amount of time they spent providing various services to the plaintiff cannot be relied on to assess gratuitous services by way of a mathematical calculation. It is usually the case that people do not keep accurate contemporaneous records of gratuitous services and find themselves having to do their best to recollect what the situation was at various times in the past. It is made even more difficult when the services provided to the plaintiff were included in services provided to members of the household generally such as cooking, washing and cleaning.
I am satisfied that the evidence of the plaintiff, Mrs Wickham, Paula Wickham and Mr Schroeder can be relied on to show the general pattern of gratuitous services. I find that the greatest level of gratuitous services were provided in the first month or so that the plaintiff was home from hospital. I also find that the need for and provision of gratuitous services increased in the three‑month period after the plaintiff had knee surgery in November 1997.
I accept the plaintiff's evidence that when she was discharged from hospital and went home in March 1997 she needed to use crutches, that she could shower herself with difficulty and that she needed help to put pants on because she could not bend her knees. I accept Paula Wickham's evidence that she helped the plaintiff in the shower and move about the house. I accept the evidence of Mrs Wickham to the effect that the plaintiff could not do any cooking, washing and cleaning by November 1997. She was also unable to do any of these things for the three months thereafter while recovering from knee surgery. Although I accept the evidence of Mrs Wickham and Mr Schroeder that the plaintiff cooked and cleaned before the accident, I also find that before the accident Mrs Wickham did cooking, washing and cleaning that benefited the plaintiff as well as other members of the household.
No damages are to be awarded for the value of such services if they would have been provided to the plaintiff even if she had not been injured. See s 3D(2) of the Motor Vehicle (Third Party Insurance) Act 1943 ("the Act"). There is also a statutory threshold of $5,000 that needs to be reached before damages can be awarded for the value of such services over and above those that would have been provided even if the plaintiff had not been injured. I accept Mr Schroeder's evidence that it was not until about a year before the trial that the plaintiff was able to share doing housework.
An average rate of $14 per hour is appropriate for gratuitous services for the period March 1997 to October 2000. This equates to a total of about 357 hours or an average of about two hours per week of services over the period March 1997 to November 2000 to meet the statutory threshold. During all of this time the plaintiff would have been trying to come to terms with her life. While I can't be precise I am satisfied that the value of the services for cooking, washing and cleaning actually provided to the plaintiff from March 1997 to October 2000 over and above the value of such services that would have been provided even if she had not been injured exceeds the statutory threshold.
I cannot make a mathematical calculation and doing the best I can I award the plaintiff the sum of $10,000 for past gratuitous services which sum includes interest.
General damages
I repeat all of my findings on the plaintiff's injuries and their effects upon her for the purpose of assessing general damages.
By s 3C of the Act the maximum amount of damages that may be awarded for non‑pecuniary loss is capped ($240,000 as at the time of trial) and the amount is to be a proportion, determined according to the severity of the non‑pecuniary loss, of the maximum award which may be awarded only in a most extreme case.
The plaintiff has suffered severely as a consequence of the accident. While her cognitive impairment has been described as subtle and affects higher level communication skills the practical consequences of the combination of cognitive impairment and depression are significant and permanent. Only a modest improvement can be expected with an increase of anti‑depressant medication.
The plaintiff suffers from fatigue, memory loss, inability to concentrate, mood swings and loss of libido. Her voice is husky.
The plaintiff was initially hospitalised for a lengthy period of time and subsequently had to undergo knee surgery and faces the possibility of further knee surgery.
She was a very talented student and she is no longer capable of tertiary education and her ambition to pursue a professional career has been shattered.
I accept the evidence of Mrs Wickham that while the plaintiff was not an extrovert before the accident she was not reticent either and participated in a group. I also accept her evidence and that of Paula Wickham and Mr Schroeder that before the accident the plaintiff had a good group of friends but is now withdrawn and has a lonely social existence. Given that her cognitive impairment is permanent and that her ongoing depression is permanent although liable to fluctuate in intensity this situation is unlikely to change. The plaintiff is not the capable, bright and happy person she used to be. While she lives together with Mr Schroeder in their own home and enjoys a good relationship with him it would have been much better but for the accident.
In the plaintiff's case having been a relatively high achiever and being part of a family of relatively high achievers, having to live with always knowing that she is cognitively impaired and is no longer able to do things that she would otherwise have been capable of would be devastating.
The plaintiff's knee injuries have had serious consequences. She is no longer able to play sports and, in particular, netball that she used to enjoy. She used to enjoy jogging, horse riding, roller blading and snow skiing which she can no longer do. She will suffer early degeneration in both knees and as mentioned faces the prospect of further knee surgery. Her knees currently cause her discomfort.
Consistent with her leaning towards English literature and the arts, before the accident she used to enjoy and read many books. She now struggles to do so.
A bony lump in the plaintiff's right knee and scarring on her left knee from the reconstruction cause her embarrassment. She has minor scarring on her elbows. She has a dent above the hairline above her right eye which is sensitive to touching and a minor scar on the right side of the back of her head.
In my view the plaintiff is entitled to very substantial damages. I award her general damages of $120,000 which equates to 50 per cent of a most extreme case.
Travel expenses
I accept the accuracy of a schedule of travel expenses for attendances on various medical practitioners and health professionals and award the plaintiff damages under this head in the sum of $1,601.10.
Exemplary damages and aggravated damages
The plaintiff has claimed both exemplary damages which are punitive and not compensatory and aggravated damages which are compensatory. The claim for exemplary damages relates to the defendant's conduct in connection with the accident. The claim for aggravated damages relates to the conduct of the defence which included denials of negligence and the plaintiff's injuries which it is said aggravated the plaintiff's depression.
In Lamb v Cotogno [1987] 164 CLR 1 which was a case involving a claim for personal injuries the Court set out the following with approval:
"Mayne & McGregor on Damages, 12th ed. (1961), p.196 contains an oft-cited description of exemplary damages:
'Such damages are variously called punitive damages, vindicative damages, exemplary damages, and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights.'
The punitive aspect of exemplary damages was emphasized by Brennan J in XL Petroleum (N.S.W.) Pty Ltd v Caltex Oil (Australia) Pty Ltd where he said:
'As an award of exemplary damages is intended to punish the defendant for conduct showing a conscious and contumelious disregard for the plaintiff's rights and to deter him from committing like conduct again, the considerations that enter into the assessment of exemplary damages are quite different from the considerations that govern the assessment of compensatory damages. There is no necessary proportionality between the assessment of the two categories. In Merest v Harvey substantial exemplary damages were awarded for a trespass of a high‑handed kind which occasioned minimal damage, Gibbs CJ saying: "I wish to know, in a case where a man disregards every principle which actuates the conduct of gentlemen, what is to restrain him except large damages?"
The social purpose to be served by an award of exemplary damages is, as Lord Diplock said in Broome v Cassell & Co, "to teach a wrong‑doer that tort does not pay." ' "
At p 10 the Court stated inter alia:
"So far as the object of deterrence is concerned, not only does it extend beyond the defendant himself to other like‑minded persons, but it also extends generally to conduct of the same reprehensible kind."
In this case the defendant showed gross disregard for other members of the community. He chose to drive his motor vehicle after having consumed a large amount of alcohol and having smoked cannabis and on a very public occasion in Perth where many members of the community were making their way home after having watched the Skyshow. Further, he drove at a grossly excessive speed and over a hill in an area where many people were present as pedestrians. Having struck the plaintiff he continued on for some appreciable distance before stopping. When eventually confronted with what he had done the best he could do was curse the plaintiff for spoiling his good night out.
When the defendant gave evidence he continued to display an air of indifference to the seriousness of his actions and their consequences.
In my view this is an appropriate case to award exemplary damages to show the defendant and all other potentially like-minded people the Court's condemnation of such conduct generally and particularly in circumstances where there are many pedestrians about the place after a public event.
I award the plaintiff exemplary damages in the sum of $10,000.
I am not satisfied that the way the defence case was conducted increased the plaintiff's depression to any greater extent than litigation per se and so I make no award for aggravated damages.
Summary of awards
General damages $120,000.00
Past loss of earnings $14,307.00
Past loss of superannuation $1,070.00
Interest on past loss of earnings
and superannuation $1,286.00
Loss of future earning capacity $427,609.00
Past gratuitous services $10,000.00
Future medical, pharmaceutical and
travelling expenses $20,000.00
Special damages $19,290.25
Travelling expenses $1,601.10
Exemplary damages $10,000.00
Total$625,163.35
Conclusion
For all these reasons I find that judgment should be entered for the plaintiff in the sum of $625,163.35 and give liberty generally to the parties to apply.
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