Wilkie v Redford
[1999] QSC 119
•4 June 1999
IN THE SUPREME COURT
OF QUEENSLAND
No 373 of 1998
Brisbane
Before the Hon Mr Justice Muir
[Wilkie v Redford & Anor]
BETWEEN:
LYNETTE ELIZABETH WILKIE
Plaintiff
AND:
KENT REDFORD
First Defendant
AND:
GREGORY JOHN WILSON
Second Defendant
REASONS FOR JUDGMENT - MUIR J
Judgment delivered 4 June 1999
CATCHWORDS: TORTS - negligence - contributory negligence of pedestrian - pedestrian injured by motor vehicle - liability of driver - whether failure to keep look out.
Counsel:Mr B. Hall QC and Mr P Woods for the plaintiff
Mr K.S. Howe for the defendants
Solicitors:Phillips Fox as town agents for Attwood Marshall Lawyers for the plaintiff
McInnes Wilson and Jensen for the defendants
Hearing dates: 17, 18, 19, 20 May 1999
IN THE SUPREME COURT
OF QUEENSLAND
No 373 of 1998
Brisbane
Before the Hon Mr Justice Muir
[Wilkie v Redford & Anor]
BETWEEN:
LYNETTE ELIZABETH WILKIE
Plaintiff
AND:
KENT REDFORD
First Defendant
AND:
GREGORY JOHN WILSON
Second Defendant
REASONS FOR JUDGMENT - MUIR J
Judgment delivered 4 June 1999
1 The plaintiff was struck by a Mazda Station Wagon (“the Mazda”) driven by the second defendant as agent for the first defendant at about 7.30pm on 7 August 1993 when she was crossing the Nicklin Way at Warana. At the place of the accident the Nicklin Way is a divided highway with two traffic lanes and a parking lane (delineated by a white line) on each side of a median strip. Weather conditions were fine, the traffic light and the area in question was relatively well lit by street lighting.
2 The Mazda, a Holden Torana driven by a Mr Rickard and a Honda Sedan driven by a Mr Crerar had been moving south in close proximity to each other for some minutes before the accident. Immediately prior to the accident, the Honda was in the inside lane (nearest the median strip) and the Mazda was in front of the Torana in the outside lane (nearest the kerb). The Honda was slowly overtaking the Mazda. Mr Crerar could not say with certainty where his vehicle was positioned in relation to the Mazda when he first saw the plaintiff. He thought that the Mazda was either beside his car or a little behind it. Mr Rickard’s recollection in that regard was also somewhat uncertain. It was that just before the collision the Mazda and the Honda were virtually level with each other with the Honda having part of its length ahead of the Mazda.
3 The Honda braked first and the Mazda then drew ahead and struck the passenger side of its front.
4 Mr Rickard said that his attention was first drawn to the presence of the plaintiff by a northbound car blowing its horn. He observed the plaintiff, then some 200 metres ahead, run across the northbound lane whilst looking behind her. He said that she continued to run across the median strip and into the path of the southbound vehicles.
5 Mr Crerar said that he first saw the plaintiff on the median strip when he was about 100 metres away and that when his car was about 50 metres from the plaintiff he observed her step off the median strip and slowly and deliberately walk across the road in front of the approaching vehicles. He said that the plaintiff did not appear to look towards them at all. After the plaintiff stepped off the median strip Mr Crerar braked heavily, managed to narrowly avoid hitting the plaintiff, and then heard the sound of her being struck by the Mazda. He had not noticed the plaintiff crossing the lanes of traffic on the other side of the median strip.
6 The driver of the Mazda (the second defendant) was unable to be located and did not give oral evidence. A statement made by him on 8 August 1993 was tendered without objection. Relevantly, it provided -
“I was travelling in the left hand lane of the dual lane roadway and I was just ahead of another vehicle which was travelling in the inside lane. This vehicle was in the process of overtaking my vehicle on my right hand side. At this time I was travelling at about 60 kilometres an hour.
At the time weather conditions were clear. The roadway was dry.
It was dark at the time and I had my headlights on low beam. The vehicle overtaking our vehicle also had his lights on low beam.
As we travelled south everything appeared to be normal when a pedestrian stepped into the path of my vehicle from the right hand side. It was the first time I had seen her and I had not seen her standing on the median strip. It appeared that she just came straight across the road.
As soon as I saw her on my right I applied the brakes and she was right in front of my vehicle. It appeared to me that she made no attempt to get out of the way or to take any evasive action at all she just continued to cross the road at the same gait.
We both collided and I saw the female pedestrian collide with the front left hand side of the vehicle. She then came up onto the bonnet and hit the windscreen and off to the side. At this time my vehicle was just about stopped. My vehicle did not at anytime run over the pedestrian.”
Miss Ogilvie, who was a passenger in the front seat of the Mazda at the time of the accident, gave evidence. I formed the view that she retained little recollection of much of what transpired at the time of the accident and that a statement given by her to a police officer on 9 August 1993 was likely to be far more reliable than her oral evidence. The statement included the following -
“I can remember travelling South along the Nicklin Way in the lane closest to the gutter, we were travelling at about 60km/hr when I heard Greg say something and then I saw a female person directly in front of the car and very close, I knew at this stage that we would not be able to avoid hitting her.
Greg braked and swerved and I saw her hit the left hand side of the car and then she flew up and hit the windscreen ...
When I first saw the girl in front of us she was walking in a easterly direction and it seemed to be just a normal passed walk.” (emphasis added)
Miss Ogilvie agreed that the word she used when giving her statement was more likely to be “fast” then “passed”.
7 There is a disparity in evidence as to the speed at which the Mazda was travelling at the time of the accident. Mr Rickard estimates the speed of the three southbound vehicles to be between 70 and 80 kilometres an hour. Mr Crerar, whose Honda was overtaking the Mazda immediately prior to the accident, estimated his speed at 60 kilometres an hour. As can be seen from the extract from Mr Wilson’s statement, his estimate of speed was about 60 kilometres an hour. Miss Ogilvie was in broad agreement with that assessment.
8 The evidence supports the conclusion that the Mazda came to a halt within a short distance of the point of impact.
9 Messrs Rickard and Crerar and Miss Ogilvie appeared to me to be sensible persons doing their best to give an accurate account. The differences in their respective recollections are not surprising having regard to the fact that each of them was in a car located on the highway at a place different to the others and the incident under consideration was sudden, violent and took place at night.
10 I find that, as Mr Rickard reported, the plaintiff ran across the northbound lanes without any apparent care for her safety and whilst not attempting to observe approaching traffic. A car in the northbound lane sounded its horn at her and this attracted Mr Rickard’s attention. I conclude that the plaintiff paused or hesitated on the median strip and walked rather rapidly in front of the southbound vehicles. Although I doubt that the Mazda was travelling at approximately 60 kilometres per hour, I am satisfied that it was not exceeding 70 kilometres an hour when the second defendant first observed the plaintiff and commenced to brake.
11 There was some dispute about the speed limit in the subject section of the Nicklin Way at relevant times. I am satisfied that there were signs on the Nicklin Way in reasonably close proximity to the point of impact which showed the speed limit to be 70 kilometres per hour.
12 The best argument for the plaintiff on liability is based on the admission by Mr Wilson in his statement that he did not see the plaintiff on the median strip although the driver behind him had had her under observation from the time when she commenced to cross the road and the driver of the Honda noticed the plaintiff when she was on the median strip. The plaintiff’s counsel argues that if the Mazda driver had been keeping a proper look out he would have noticed the plaintiff on the median strip and, like the Honda driver, would have had time to brake or take evasive action.
13 It is argued on behalf of the defendants that the explanation for the fact that Mr Crerar saw the plaintiff before Mr Wilson saw her and was able to brake and avoid hitting her was that Mr Wilson’s vision was obscured, in part at least, by the Honda. The Honda, as I have found, was in the process of overtaking the Mazda when Mr Crerar saw the plaintiff move from the median strip. It is also submitted that the mere fact that Mr Wilson saw the plaintiff rather later than did the other drivers does not require a finding of negligence.
RELEVANT PRINCIPLES AND THEIR APPLICATION TO THE FACTS
14 In McLean vTedman (1984) 155 CLR 306 the majority of the Court said at 311 -
“The standard of care expected of a reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others. This was acknowledged even in the days when contributory negligence was a common law offence: Wheare v Clarke (1937) 56 CLR 715 at 723; Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 at 444.
Although that passage was directed to an employer’s liability for a workplace accident the principle expressed is relevant to the question of the second defendant's negligence.
15 In Trompp v Liddle (1941) SR (NSW) 108 Jordan CJ said at 109 -
“A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at a pace he chooses so far as roads coming in on his left are concerned, or with complete indifference to the possibility of a car somewhere emerging from the sideroad as the result of accident, miscalculation, ignorance or recklessness. It means that it is not unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something that should make him realise that they are not. Thus, the mere fact that he sees the bonnet of a car appear from a side street on his left does not make it imperative for him to stop. Drivers in such a position normally advance far enough to see where the cars are approaching on their right; and a driver so approaching may reasonably assume that the driver on his left is advancing to serve his purpose unless he gets some indication to the contrary.”
16 Those observations are of relevance to a driver’s duty in relation to a pedestrian crossing the road along which a driver is travelling. A driver noticing a pedestrian beside a road such as the Niklin Way is entitled to proceed on the assumption that the pedestrian will act with a reasonable degree of prudence unless there was something in the conduct of the pedestrian to alert the driver to the possibility that the pedestrian is engaging or may engage in aberrant behaviour. See the above passage from Trompp v Liddle and Cotton v Commissioner for Road Transport (1943) SR (NSW) 626 at 68-69.
17 The second defendant did not see the plaintiff until she was either in the lane in which he was travelling or virtually in that lane and a short distance in front of him. This is despite the fact that another driver, Mr Rickard, had the plaintiff under observation from when she was crossing the other side of the highway. Mr Crerar first saw her when she was on the median strip and was able to keep her under observation from that time onwards. It will be recalled that Mr Rickard’s attention was first drawn to the presence of the plaintiff by the sound of a car horn. His vehicle was behind the Mazda.
18 I find it difficult to resist the conclusion that if the second defendant had been keeping a proper look out he would have observed the plaintiff much sooner than he did and, like the other two drivers, have been in a position to avoid her. I think it less probable than not that the second defendant’s vision of the plaintiff was obscured at some point just prior to the time when he first observed her. The evidence allows me to do no more than speculate about such a possibility.
19 I find that the second defendant, although driving in a generally careful manner, kept no look out towards the right at relevant times, except perhaps to observe that he was being overtaken. Some warning of the plaintiff’s inappropriate behaviour would have been given had he observed her crossing the north bound lanes of the highway at night away from traffic lights or a pedestrian crossing. Further, such warning would have been given had he observed that she appeared to be crossing without taking any care for her own safety. In my opinion, a reasonable person in the position of the second defendant, once he observed the plaintiff, would have taken care to keep her under observation.
20 I conclude that the second defendant breached his duty of care to the plaintiff by failing to keep a proper lookout to his right front. That failure disabled him from taking appropriate and effective evasive action and was a cause of the accident.
Contributory negligence
21 In my view the plaintiff’s degree of departure from the standard of care of the reasonable man was far greater than that of the second defendant. The second defendant was driving within the speed limit on a straight stretch of road under good conditions. His sole failure was not to keep an adequate look out so as to avoid a pedestrian walking into his path. There is nothing to suggest that there was anything else about the second defendant’s driving which was in any other way deficient or irregular.
22 On the other hand, the plaintiff recklessly placed herself in a position of extreme danger. Her conduct went beyond mere inadvertence or inattention. She wore dark clothes, walked across a busy highway at night without looking towards approaching vehicles of which she must have been aware, had she exercised the smallest degree of care. Her conduct bordered on the suicidal. She had a blood alcohol level approaching .2 at the time of the accident. But it seems to me that although this may explain her conduct it does nothing to excuse or heighten the extent of her blame. I see little difference between a person deliberately embarking on such a dangerous course when sober and doing so because of a lessening of awareness and inhibitions through consumption of alcohol. The position may well be different where a person, after consuming alcohol, embarks on a course likely to endanger the safety of others.
23 I apportion responsibility for the accident 25% to the defendants and 75% to the plaintiff. In making such apportionment I have not lost sight of the fact that the second defendant, as the driver of a motor vehicle, was in a position where, in the event of an accident, he could be responsible for inflicting much greater damage than the plaintiff whose conduct was not particularly likely to cause injury to others. cf. Cheetham v Bou (1989) 10 MVR 242 at 245.
The plaintiff’s injuries and medical treatment
Hospital records24 The plaintiff was admitted to the Nambour General Hospital on 7 August 1993 where the following injuries were reported -
1.Fractured ribs on both sides.
2.Fractured left upper humerus.
3.Frontal lobe petechial haemorrhages, diffuse cerebral oedema and a small amount of blood in the posterior horn of the (L) lateral ventricle.
4.Fracture of the right the medial malleolus, treated with a below knee plaster of Paris.
The plaintiff suffered from a protracted period of post traumatic amnesia from which she did not begin to emerge until mid-November 1993.
25 Dr Hopkins of the Princess Alexandra Hospital reported on 8 June 1994 of the plaintiff that -
“At the time of discharge her mobility was still significantly impaired by bilateral flexion contractures of both knees and ankles. At the time of discharge she remained essentially wheelchair bound apart from doing standing transfers which she usually did independently. Her disability list on discharge was:
1)healing fracture left ankle
2)healing fracture left humerus
3)mild residual right hemiplegia
4)bilateral knee and ankle contractures, left worse than right.
5)persisting cognitive memory deficits amotivated in terms of her rehabilitation program.
...
She was reviewed again at head Injury Outpatients on the 29.4.1994 at some 8 months pot injury. At that time it was noted she was attending physiotherapy at Nambour. Essentially she remained wheelchair bound and could still transfer independently which equated essentially to the situation at the time of discharge from rehab. It was noted she still had a 15° contracture of the right knee and approximately 70° contracture of the left knee. Ongoing physiotherapy was advised for her. She was seen at Dr North’s Orthopaedic Outpatients on 15.11.1993. At that time it was noted the left shoulder was still demonstrating some limitation of range of movement. Left elbow extension was also limited. There was stiffness associated with right ankle movement. At that assessment her knee contractures were noted.”
26 The date of discharge from the Princess Alexandra Hospital was 19 February 1994.
27 A report of Dr Pincus, the head injuries unit registrar of the Princess Alexandra Hospital, noted that -
“On the 18/1/94 a Neuropsychology Assessment was performed by Lynda Troy. The findings were that basic problem solving reasoning and memory abilities were intact. There were however significant problems with memory, susceptibility to interference, visuomotor speed and motivation. By the time of discharge Lynette had become mainly independent in her activities of daily living apart from requiring distant supervision with her transfers.
...
Her mobility however was still significantly impaired by bilateral flexion contractures of both knees and ankles. Lynette remains essentially wheelchair bound apart from doing standing transfers which are usually independent.”
Orthopaedic evidence
28 Dr Winstanley, orthopaedic surgeon, reported on 19 February 1996 that -
“The patient has had persistent symptomatology associated with her right, lower limb and left leg, with, flexion contracture of her knee, and left shoulder since the accident. ...
Your client is unable to mobilize without the aid of her wheelchair. She is able to stand and transfer to the toilet. The patient has had surgery to her left knee for release of her medial hamstring, performed in the Nambour General Hospital in late 1995. She was subsequently in plaster for a period of 9 weeks following this surgery. on removal of her cast, her knee was straight but subsequently she has developed recurrence of the deformity associated with her left leg. Apparently there was no specific exercise program following removal of her cast, which has led to recurrence of the flexion contracture. ... She has a flexion contracture or her toes and an inversion deformity of her right foot. This is secondary to her injury situation. This causes problems with footwear and she experiences restriction in standing due to the foot deformity.
Your client has continuing restriction in range of motion within her left shoulder. She feels that her restriction in range has not significantly changed since I reviewed her in November 1994. She is right-handed dominant.
...
The patient has a fixed flexion deformity of her left knee of 20 degrees. Passively I am able to extend this to ap I proximately 15 degrees. Within her right knee, she has a fixed flexion deformity of 10 degrees. She has quite a varus deformity of her right foot associated with contracture of her second to fifth toes, which is passively correctable. She has increased tone present within her right foot and decreased sensation within her distal right leg below the knee joint.
Your client has had significant injuries associated with a motor vehicle accident in 1993. ... At this stage, she is not immobilized but confined to a wheelchair and from my review, I do not feel that she will be able to mobilize independently.
Your client has equina varus deformity of her right foot. She has had a fractured ankle on that side. In my opinion, it is not the fracture which has led to the deformity but it is associated with the altered tone and muscles within her right leg. In this situation, she may require consideration for surgery of sub talar joint for correction of her deformity. This would give her a plantargrade foot to aid her in standing and mobilization. With her left leg, following her medial hamstring release I feel that there is room for further improvement within her leg associated with an exercise program to achieve better extension, which may aid her in standing.
In my opinion, her condition has stabilized within her left shoulder. She has a permanent partial disability relating to her left shoulder injury of 15% of her left upper limb. In relation to her left knee flexion deformity, she has a situation where I feel that with further time and activity, she will be able to achieve a better range of motion.
From the degree of flexion deformity which she had at consultation, she has a disability associated with her knee of 5%.
In relation to her right lower limb, the patient has an iversion type deformity and flexion deformity of her toes which is secondary to her altered toe associated with her injury. This deformity which she has could be corrected by bony arthrodesis of her foot. This would allow her to have a plantargrade foot and continued mobilisation. Her fractured ankle which she has had would not predispose her to development of this deformity. Bony arthrodesis of her foot would require a period of ten days hospitalisation and a period of three months plastered. The cost involved in this, to cover medical and hospital expenses and rehabilitation, would be in the vicinity of $7500.00. After that time she would require further treatments of physiotherapy to allow her to achieve full functional activity.
In relation to her fractured ankle, the fracture has healed satisfactorily. In this point in time, associated with her fracture, she has 5% loss of function in her right lower limb. if your client does undergo bony arthrodesis of her foot for correction of the inversion deformity, she would have an additional 15% loss of her right lower limb.”
In his oral evidence Dr Winstanley expressed the view that in 1996 the plaintiff may have been able to obtain sufficient stability to walk if she had the assistance of a walking frame or similar device. In his opinion the plaintiff would have difficulty in walking unaided -
“because of the foot deformity on the right and the flexion, the bent contracture of her knees ... her foot turns in so she walks on the outside border of the foot ... she has a bent knee so it is difficult to stand in an upright stance with flexion deformity of your knee.”
He further concluded that if the plaintiff walked he would expect to see an abnormal walking pattern. In his view the plaintiff would limp, be bent forward and would walk with an ataxic gait i.e. with her feet more widely apart than normal.
In cross-examination Dr Winstanley accepted that a determination of the extent to which the plaintiff’s leg wastage and reported inability to use her legs was associated with her brain injury (and flowed from some psychological cause) was properly a matter for neurological opinion.
Dr John Fraser, orthopaedic surgeon, examined the plaintiff on 13 May 1996. In a report of 20 May 1996 he expressed the following opinion -
“OPINION
The injuries suffered by Ms. Wilkie are consistent with the stated cause. I am of the opinion that her condition is now stable and that no further improvement will occur with the passage of time. There is no indication for any further orthopaedic treatment.... The fracture of the left humerus has left her with impaired function in the left upper limb. As a result of this impairment she has a permanent partial disability amounting to 12.1/2 percent of efficient function of that upper limb.She has sensory loss in the right hand. As a result of the sensory impairment I am of the opinion that she has a 7.1/2 percent loss of efficient function of the right upper limb.
As a result of her head injury, Ms. Wilkie has been left with a spastic dyplegia. It is my opinion that she is not ambulatory. I am of the opinion that her mobility depends on the use of a wheelchair. I am of the opinion that her ability to transfer from her wheelchair to an ordinary chair or bed is limited. I am of the opinion that her permanent partial disability attributable to her spastic dyplegia amounts to 60 percent of bodily function.
I would estimate that Ms. Wilkie's total permanent partial disability amounts to 70 percent of efficient bodily function.
Ms. Wilkie is not capable of gainful employment”.In cross-examination Dr Fraser agreed that his opinion was based, in part, on the history provided to him by the plaintiff. He concluded, as did Dr Winstanley, that the plaintiff would have difficulty in balancing, would walk with an ataxic gait (if she walked at all) and would have difficulty in rising from a sitting position. On his examination of the plaintiff he noted various indicia of brain damage, namely - hyper-reactive knee jerks, loss of sensation in the right foot and spastic diplegia. He said in examination in chief that it was possible that when he saw the plaintiff in May 1996 she was capable “of some limited walking” without a wheelchair but that “she probably could not manage completely without a wheelchair”. He thought that the plaintiff’s condition was unlikely to improve in relation to the condition which he observed her to be in 1996.
The evidence of those witnesses was not the subject of challenge (except to the extent that counsel for the defendants sought to establish that some of the opinions expressed were based in whole or in part on the oral history given by the plaintiff) and, generally speaking, I accept all of it.
Psychiatric evidence
There was evidence from two psychiatrists, Dr Reddan and Dr Hutchinson. In a report of 16 May 1995. Dr Hutchinson expressed the opinions that -
(a)the plaintiff had quite severe brain damage;
(b)the brain damage was consistent with having been caused by an accident and that “The brain damage is largely proportional to the length of loss of continuous memory which apparently was some considerable time”;
(c)the plaintiff’s everyday activities are severely restricted. She is wheelchair bound, has suffered considerable intellectual loss, has a very poor memory and a very restricted social life. “There is quite a lot of severe frontal lobe damage which tends to affect judgment, forward planning and appropriateness of behaviour and ... her judgment has been seriously affected”;
(d)it was doubtful that the plaintiff would be able to be employed.
In a report of 1 December 1998, Dr Hutchinson reported having seen the plaintiff again on 26 November 1998. In that report he expressed the opinion -
“I put her rather indifferent approach to her serious problems, as being due to frontal lobe damage, rather than a hysterical presentation, although I could not rule out the latter. There does not seem to be any Affective Disorder now, she is not depressed or particularly anxious, nor does she have any psychotic symptoms. I was not convinced by her general presentation of her appreciation of current events.
However, I have found that the main question has not been answered. I wonder why she is unable to walk. There is no orthopaedic reason as to why she cannot walk, apart from the effects of disuse atrophy, but I note that there is good evidence that she has severe shearing damage to the frontal lobes, which of course contain the motor cortex, in her original injury. I think a neurological opinion is essential for coming to a conclusion about the degree of her disability in relation to the accident.”
In his oral evidence, Dr Hutchinson confirmed his scepticism as to the existence of disabilities to the extent of those reported by the plaintiff. He said, referring to his second examination of the plaintiff-
“Her ability to function on the second occasion was surprisingly good and yet she still insisted that she couldn’t walk, which really was out of context with her usual abilities in most other areas. ”
He said that he wanted a neurological examination to tell him whether the plaintiff’s muscle wasting and disuse atrophy was “voluntary or involuntary” but that none had been forthcoming. In cross-examination he expressed the view that if the plaintiff was in fact walking as was asserted on behalf of the defendants, then the plaintiff’s disability was probably more like 10 percent rather than 65 percent. He concluded that the plaintiff was exaggerating her problems.
I accept that the plaintiff did exaggerate her lack of mobility to a degree but, in my view, Dr Hutchinson became overly suspicious and critical of the plaintiff after the time of his first report.
Dr Reddan interviewed the plaintiff on 13 May 1996 and gave a report to the defendants’ solicitors dated 1 June 1996. In it she expressed the opinions that -
(i)the plaintiff sustained “a serious head injury with a prolonged post traumatic amnesia time” in the accident;
(ii)the plaintiff was fully oriented and “displayed a surprising grasp of current affairs”;
(iii)“There is evidence to suggest that (the plaintiff) had some psychiatric dysfunction prior to the motor vehicle accident with some features of a mild conduct disorder manifest in childhood and a tendency towards alcohol abuse suggesting some mild antisocial traits in her personality in adult life. However, there is nothing in the available history to suggest to me that this was of sufficient severity or pervasive enough to warrant a diagnosis of a personality disorder.”;
(iv)the nature and extent of any possible brain damage from the accident cannot be determined with accuracy;
(v)there is no evidence to suggest that her capacity to work as a bar maid or as a waitress was seriously impaired by the accident;
(vi)the plaintiff’s use of marijuana is a complicating factor. The plaintiff displayed evidence of frontal lobe disturbance with a tendency towards impulsive answering, difficulties in organising her memory, deficits in attention and concentration and deficits in complex problem solving;
(vii)“Her affect is also mildly globile and her information processing ability is somewhat slow. On the balance of probabilities I think it likely that although substance abuse is contributing to her deficits the prolonged nature of the post traumatic amnesia time after her head injury would suggest that some of these deficits are directly attributable to the accident ...”.
(viii)The plaintiff is incapable of working but would benefit from further active rehabilitation.
(ix)In view of the plaintiff’s brain damage, her tendency towards drug and alcohol abuse, her social isolation and vulnerability, it is desirable that any moneys received by her be handled by the Public Trustee.
Dr Reddan gave another report dated 6 October 1998 in which she discussed, inter alia, alcohol and drug taking by the plaintiff. She noted that in 1993 the affairs of the plaintiff had been placed in the hands of the Public Trustee and that hospital records noted a history of alcohol abuse. She further noted that the plaintiff had admitted to her that she had been a heavy drinker in the past.
I do not accept that the plaintiff’s capacity to work as a barmaid or in the hospitality industry in an unskilled or semi-skilled role was not seriously impaired by the accident. In her oral evidence Dr Reddan spoke of the plaintiff’s socially inappropriate responses in conversations, of her inability to manage money and of the need for another person to assist her in organising normal everyday activities. These are all characteristics, accepted by Dr Reddan to exist, which greatly restrict the range of employment opportunities open to the appellant. I also find that the appellant, as a result of the accident, experiences difficulty with her memory. Her problem is that she has difficulty, at times, in immediately recalling recent events. When this problem occurs she tends to recall the forgotten matter within 24 hours.
The plaintiff’s evidence about her mobility
Strenuous attempts were made by the defendants to establish that the plaintiff was not, for practical purposes, confined to a wheelchair. To this end, three witnesses were called: Mrs Robyn Boyd (a person employed as a security officer at the Big W at Kawana Waters in 1995), Mr Edwards (the shopping centre manager) and a neighbour, Mrs Drosdeck.
I accept Mr Edwards’ evidence that he had a meeting in his office with the plaintiff in about mid-1995 concerning the banning of her sons from the shopping centre. However, it did not appear to me that Mr Edwards retained any actual recollection of the meeting or of the plaintiff. I accept that Mr Edwards gave his evidence truthfully but I do not accept that he has any actual recollection of observing the plaintiff walking into his office.
Mrs Drosdeck, an invalid pensioner, aged probably in her late 60s, was the plaintiff’s neighbour for about eight years. Her evidence may be summarised as follows -
·She saw the plaintiff drunk on a number of occasions over a period of several years.
·There was an incident in 1994 involving an altercation over a dog in which the plaintiff got out of her wheelchair and walked about 10 feet to a person, struck him and walked back to her chair.
·In 1994 and 1995 she saw the plaintiff about three times in the plaintiff’s yard in the evening taking clothes off her washing line. When observed on these occasions the plaintiff was crouched over and extremely unsteady on her feet.
·On an occasion in the street in about March 1994 she had a conversation with the plaintiff in which, when asked why she was still in the wheelchair, the plaintiff “said she was having difficulty getting assistance and that she needed the wheelchair more or less to get monetary assistance and to get help... ”.
The plaintiff’s children, it seems, were a source of much neighbourhood disruption and complaint. Mrs Drosdeck had made complaints about the plaintiff and her children to authorities on various occasions. I do not say this critically. I have no reason to doubt that there was adequate foundation for the complaints. But it is apparent to me that a person such as Mrs Drosdeck would be likely to look askance at the plaintiff and at what she would consider to be antisocial behaviour on the plaintiff’s part. I accept that in 1994, and perhaps in 1995, Mrs Drosdeck saw the plaintiff out of her wheelchair on two and three occasions and moving over a short distance in an awkward fashion. I also find that in early 1994 some discussion did take place concerning the use of a wheelchair by the plaintiff and the desirability of her being able to terminate or limit its use. However, I find that Mrs Drosdeck’s recollection of the content of that conversation is vague and I am not prepared to find that, in substance, the plaintiff admitted to not needing the wheelchair, and to having a plan of action by which she would confine herself to a wheelchair with a view to obtaining greater social security benefits and enhancing the prospects of a common law damages claim.
I accept that there was an occasion in 1995 in the Woolworths Variety Store on which Mrs Boyd saw the plaintiff standing at a rack of clothes and then moving from the rack to her wheelchair a short distance away. On more than one occasion that year she observed the plaintiff, when shopping, stand in order to take an item from a supermarket shelf and place it in her wheelchair. At the time of making these observations, Mrs Boyd’s interest in the plaintiff was based on her role as a security officer. She was not concerned to take any note of the plaintiff’s movements by reference to the plaintiff’s physical capabilities. That much is plain from her lack of observation of the plaintiff’s gait.
I have not overlooked the evidence of Miss York. I do not regard her observations of the plaintiff’s movements as reliable. She was antagonistic to the plaintiff and I thought her inclined to exaggerate.
Conclusions as to the plaintiff’s mobility
The evidence is that the plaintiff used the Kawana Shopping Centre consistently since her accident. I am confident that Mrs Drosdeck also made careful observations of her. It is significant that the reports of the plaintiff’s ability to move without use of her wheelchair are limited to the matters referred to above and are confined to 1994 and 1995. In the absence of a more recent neurological investigation, there is no medical evidence which is available to assist in a definitive objective determination of the plaintiff’s present and future inability to walk. There is however a strong body of evidence supportive of the plaintiff’s contentions. I refer in particular to the early medical records and to the orthopaedic evidence which relies in part on early neurological investigations. Dr Winstanley’s evidence, particularly that in relation to the plaintiff’s lack of muscle tone, is strongly suggestive of a capacity on the part of the plaintiff to walk to only a very limited extent.
There is also the evidence of the plaintiff’s father and mother and that of a carer, Mr Jones. Subject to the qualification expressed below, I accept the evidence of Mr Jones, who has cared for the plaintiff since about September 1996 (with a gap between October 1996 and December 1997) that he has not seen the plaintiff walk. I accept the evidence of her parents to that effect also, subject to the same qualification. It is quite possible that these persons have not made any mental note of occasions on which the plaintiff has stood for various purposes and even taken a few steps. It is also possible that the plaintiff has been concerned, in their presence, to maximise the extent of her disability.
Relying on the medical evidence and eyewitness reports, I find that the plaintiff retained the ability to stand for short periods and to walk (with difficulty) for a few metres aided by another person or persons or assisted by holding on to an appropriately placed walking aid or other object. If (which I doubt) that ability has diminished of recent times, it is as a result of voluntary lack of use by the plaintiff of the muscles associated with such movement. The plaintiff also retained the ability to transfer herself to and from her wheelchair. She still has that ability. It is significant to my mind, that since the accident the plaintiff has been able to manage at home for extensive periods without the assistance of a helper when none has been available. There is no evidence that her condition will relevantly deteriorate, except as part of the normal ageing process.
It was contended on behalf of the defendants that the accident had not brought about a vast difference in the plaintiff’s general health and enjoyment of life, having regard to her social difficulties prior to the accident and abuse of alcohol and marijuana. I find that the plaintiff, not infrequently, did drink to the point of drunkenness prior to the accident, particularly when she was in receipt of her social security cheques. I find also that she has been a fairly regular consumer of marijuana, both before and after the accident. But the evidence does not establish alcohol or drug consumption to a point where the plaintiff suffered, or was likely to suffer in the short or medium term, permanent mental or physical damage from substance abuse. I am not able to make a finding as to whether the plaintiff is now drug dependent.
Economic loss
The plaintiff was born on 12 March 1960. She was educated to grade 11 and left school at age 13. After leaving school, she joined a pantomime troupe which travelled around Australia. She remained with the troupe for two years.
The evidence she was able to give of her employment history was unsatisfactory to say the least. She did receptionists’ work between 1976 and 1984. In 1979, when aged 19, she married and had two children, one born on 11 April 1980 and the other on 17 November 1981. Her last employment was as a barmaid at Fishermen’s Wharf on the Gold Coast in 1989. The plaintiff described her work at Fishermen’s Wharf as “casual/permanent”. She has been in receipt of a pension since ceasing work as a barmaid in 1989. She said that she would have liked to continue with work in catering for weddings and receptions.
It is by no means certain that the plaintiff would have returned to work at some stage had she not been injured. It is argued on the plaintiff’s behalf that the likelihood was that she would return to work when her children were in their early teens. There was no evidence supporting the submission apart from evidence given by the plaintiff of a desire, before the accident, to return to work at some time in the future. The plaintiff had worked when her children were very young and had then spent some years on a single mother’s pension. Had she returned to work, I think it likely that she would not have worked on a full time basis and that her work pattern would have tended to be somewhat intermittent.
I accept the probability of the plaintiff's returning to work at some time in the future (after the accident) had she not been injured.
On behalf of the defendants, it is conceded that some recognition of the plaintiff’s loss of earning capacity should be made. It is submitted that the sum of $50,000 for future economic loss would be appropriate. It was submitted on her behalf that she should be allowed $200 per week for 25.82 years discounted to provide a present day sum and further discounted by 20% to allow for gaps in employment. In my view the appropriate discount is 60% to allow for the vicissitudes of life including likely periodic unemployment, lapses in motivation, and the effects of excessive drugs and alcohol consumption. Having regard to income rates given in evidence I conclude that $380 per week should be taken as the appropriate level of future earnings.
The amount I propose to allow is based on an assessment that the plaintiff would have worked over a period of about 20 years from a date commencing in about 1999. Discounted to arrive at a present day figure, provision for future earnings before applying the 60% discount is $253,232. 40 percent of that figure is $101,292.80.
Future care
It was submitted on behalf of the plaintiff that the sum of $194,704 should be allowed for future care calculated on the basis of 4 hours per week home help ($100 pw) plus social outings and membership of $5,560 ($109 pw) totalling $209 per week over a period of 42.28 years. In my view, apart from needing the organisation and supervision of her daily life and affairs referred to by Dr Redden the plaintiff needs a person to perform the heavier duties about the house and yard.
It was submitted on behalf of the defendants that the approach of Derrington J. in Johns v. Cosgrove & Ors (599/1993, 12.12.97 unreported) was appropriate and that a reasonable allowance was 4 hours per week at $10 per hour for 30 years.
In my view, having regard to the combination of tasks to be performed, 4 hours a week of unskilled assistance and 2 hours a week of semi-skilled assistance would be a more appropriate allowance. In the absence of evidence of a higher hourly rate for unskilled assistance, I adopt the $10 per hour submitted by the defendants as appropriate. For semi-skilled assistance, I propose to allow $25 an hour. There was no challenge to the material submitted earlier in the trial on behalf of the plaintiff which stated a life expectancy of 42.28 years for a 40 year old female. Having regard to the evidence of the effect of alcohol and drug abuse it seems to me that I should make an allowance in this regard and provide for a life expectancy of 40 years (the defendants submitted that 30 years would be appropriate). The future care assessed is at the rate of $40 a week plus $50 a week (a total of $90 a week) for 40 years. Again, this sum will need to be converted to a present day sum.
Past care
The evidence as to past domestic care was somewhat sketchy. The plaintiff made complaints to medical practitioners concerning the inadequacy of her care. She said in evidence when she first went home from hospital her son and a Mike Bergin cared for her and the Blue Nurses came in three times a week to bathe her and generally provide assistance. Mr Bergin left in about November 1993. From 1994 until July 1996 she had flatmates whose names she does not recall. Mr Jones became her carer in about September 1996, left in about October 1996 and returned in December 1997. The plaintiff submits that $100 per week over 5.77 years should be allowed on this account. The defendant’s submission is that $25,000 should be allowed on a global basis. I have adopted the defendant’s submission in this regard. The plaintiff’s submission was supported by little evidence of hours actually spent by persons assisting the plaintiff or evidence of appropriate costings.
Special equipment
The plaintiff has claimed special equipment at the cost of $23,395 in reliance on a report of Leonie Green & Associates Pty Ltd dated 9 April 1998. I am unsure as to how the plaintiff’s claim of a capital cost of $5,832 plus $1,090 per annum ($21 pw) for 42.28 years is arrived at. I allow the following items:
Kitchen trolley and mats $110.00
Wheel chair and cushion $1,860.00
Storage modification $1,300.00
Kitchen modification $230.00
Washing machine and dryer together with installation $1,620.00
Replacement of “bath board”, wheelchair push mits, mats,
cushions and wheelchair repair and maintenance $6,000.00
$11,120.00
Home alterationsIn relation to alterations to the plaintiff’s house which the plaintiff submits ought be made to accommodate her incapacity she has claimed $91,849 on account of capital costs, recurrent costs of $31,248, depreciation costs of $8,643 and maintenance costs of $19,712. The defendants assert that the plaintiff is not wheel chair dependent and should not be awarded any damages referable to wheel chair use. Even though the plaintiff has a limited degree of mobility, I find that her primary mode of movement around the home and in the general neighbourhood is likely to be by means of a wheel chair. The evidence did not disclose the existence of any realistic alternative. I allow the following:
Dwelling access $2,300.00
Sliding door sill fillets $90.00
Remove existing hinged doors, enlarge openings and instal sliding doors $2,250.00
Light switch relocation $900.00
Grab rails $2,450.00
Replacement of 50% of floor coverings $2,100.00
Kitchen and bathroom modifications $50,000.00
Smoke/intruder detectors $900.00
Garage $11,750.00
Garden paths $1,000.00
Council permits $900.00
Professional fees $10,000.00
Allowance for matters referred to below $10,000.00
$94,640.00I allow $6,000 to cover re-occurring costs of maintaining the detector and security system (taking into account that the need for such a system cannot be said to be entirely necessitated by the plaintiff’s physical condition caused by the accident). I also allow a sum of $4,000 for additional depreciation to floor covers, the detector and security system and the roller shutter motor. I make no allowance for “re-occur maintenance costs” as these are covered by other allowances.
Future surgery and assistance
The defendants submit that a global allowance of $5,000 would be appropriate. I am satisfied that an allowance should be made for physiotherapy, psychiatric review and orthopaedic review of $10,000, such sum to include the sum of $6,269 claimed by the plaintiff on account of such annual reviews over a 42 year period.
General damages
I assess general damages at $70,000 and allow interest on half of that sum for 5.7 years at 2%.
Protection order
The plaintiff, because of the injuries sustained in the accident, is incapable of fully managing her financial and other affairs and is at risk of being taken advantage of by the unscrupulous. I am satisfied that the plaintiff meets the description of a person in section 65(1)(a)(i) and/or (1)(b) of the Public Trustee Act 1978 and that I ought make a protection order.
In summary, I assess damages as follows -
$
General Damages $70,000.00
Interest on half the general damages to the day of trial @ 2% for 5.77 years $4,039.00
Out of pocket expenses to commencement of trial (as agreed) $62,271.80
Future surgery and assistance $10,000.00
Gratuitous care to the date of trial $25,000.00
Interest on gratuitous care to date of trial @ 2% for 5.77 years $2,885.00
Future care $82,584.00
Special equipment $11,120.00
Future economic loss $101,292.00
Home alterations $94,640.00
TOTAL $463,832.60
There will be judgment for the plaintiff against the first and second defendants in the sum of $115,958.00 being one quarter of $463,832.60. I invite submissions on costs.
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