Wok v O'KEEFE
[2006] WADC 159
•6 OCTOBER 2006
WOK -v- O'KEEFE [2006] WADC 159
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WADC 159 | |
| Case No: | CIV:2119/2004 | 19 SEPTEMBER 2006 | |
| Coram: | MULLER DCJ | 6/10/06 | |
| PERTH | |||
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for plaintiff Damages assessed at $58,690 | ||
| PDF Version |
| Parties: | ADAM PETER WOK JORDAN O'KEEFE |
Catchwords: | Motor vehicle accident Vehicle driven without owner's consent Manner of driving deliberately reckless Whether 16 year old driver owed duty of care to 15 year old passenger Voluntary assumption of risk Contributory negligence Damages for non-pecuniary loss and loss of working capacity |
Legislation: | Motor Vehicle (Third Party Insurance) Act 1993 |
Case References: | Avram v Gusakowski (2006) WASCA 16 Cook v Cook (1986) 162 CLR 376 Gala & Ors v Preston (1991) 172 CLR 243 Joslyn v Berryman (2003) 214 CLR 552 Kickett v State Government Insurance Commission (1997) 26 MVR 321 Jeffries v Fisher [1985] WAR 250 Insurance Commissioner v Joyce (1948) 77 CLR 39 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
JORDAN O'KEEFE
Defendant
Catchwords:
Motor vehicle accident - Vehicle driven without owner's consent - Manner of driving deliberately reckless - Whether 16 year old driver owed duty of care to 15 year old passenger - Voluntary assumption of risk - Contributory negligence - Damages for non-pecuniary loss and loss of working capacity
Legislation:
Motor Vehicle (Third Party Insurance) Act 1993
Result:
Judgment for plaintiff
(Page 2)
Damages assessed at $58,690
Representation:
Counsel:
Plaintiff : Mr M E Herron
Defendant : Ms B A Mangan
Solicitors:
Plaintiff : Simon Walters
Defendant : Lavan Legal
Case(s) referred to in judgment(s):
Avram v Gusakowski (2006) WASCA 16
Cook v Cook (1986) 162 CLR 376
Gala & Ors v Preston (1991) 172 CLR 243
Joslyn v Berryman (2003) 214 CLR 552
Kickett v State Government Insurance Commission (1997) 26 MVR 321
Case(s) also cited:
Jeffries v Fisher [1985] WAR 250
Insurance Commissioner v Joyce (1948) 77 CLR 39
(Page 3)
1 MULLER DCJ: In this action the plaintiff has claimed damages from the defendant for injuries the plaintiff sustained in a motor vehicle accident on 16 January 2001 when he was a passenger in a motor vehicle being driven by the defendant. At the time the plaintiff, who was born on 5 October 1985, was aged 15. He was a student at Governor Stirling High School and lived in Tatlock Way in Stratton.
2 On 15 January 2001, the plaintiff was at home in Tatlock Way with his 16 year old brother Alan. Their parents were at work but had left their vehicle at home. The plaintiff's brother took a friend for a drive in his parent's car. He did not have his parents' permission and was not the holder of a motor driver's licence. The plaintiff knew his brother had taken the car but did not accompany him on this occasion.
3 On the morning of the following day the plaintiff and his brother were again at home alone. Their parents had gone to work but had again left their vehicle behind. The plaintiff's brother, Alan, told the plaintiff he was going to take the vehicle for a drive. The defendant, a 16 year old boy who lived next door and was friends with the plaintiff and his brother, came to their house that morning and agreed to go for a drive with them in the vehicle. The plaintiff's brother reversed the car down the driveway with the plaintiff in the front passenger's seat. The defendant got into the right rear passenger seat of the vehicle.
4 The plaintiff's brother drove from Tatlock Way into O'Connor Road and then into Stratton Boulevard. He drove to the end of Stratton Boulevard where he stopped and turned the car around. As he did so he spun the vehicle's wheels on the gravel before driving back down Stratton Boulevard and turning north into Waterlilly Drive. He then drove west into Adelaide Road before stopping at a petrol station where the vehicle was re-fuelled. After re-fuelling the vehicle he drove east in Lewis Jones Road where, once again, he deliberately made the vehicle's wheels spin. He then made his way into Cockman Road and turned east into Brilliant Rise. The journey between Tatlock Way and Brilliant Rise took about 15 minutes and the plaintiff agreed his brother had been speeding and on one occasion mounted the kerb on the side of the road.
5 On reaching the end of Brilliant Rise the plaintiff's brother stopped the car and said the defendant would take over the driving. The plaintiff got out of the front passenger seat and into the left rear passenger seat. The defendant got into the driver's seat and the plaintiff's brother sat in the front passenger seat. The plaintiff knew that the defendant was only 16 and did not have a driver's licence. He said the defendant had told him he
(Page 4)
- had driven before. The plaintiff claimed he told the defendant not to do burnouts or drive stupidly. He also said he put his seat belt on and told his brother to do the same. He said the defendant then put the car into reverse and the rear wheels of the vehicle went over the kerb of the road. He described how the defendant then moved the automatic gearbox into drive and accelerated strongly out of the cul-de-sac towards Cockman Road. The plaintiff said as soon as he realised what the defendant was doing he told him to slow down. The next thing he was able to recall was that the defendant lost control of the car which went between a tree and a fence on the verge on the incorrect side of the road and hit a tree in Hindoo Elbow.
6 After the collision the plaintiff managed to get out of the car and lay on the road. His back, chest and left foot were painful. He was taken by ambulance to Swan District Hospital where he felt dazed and in pain. He was subsequently transferred to Royal Perth Hospital where he underwent surgery to remove a blood clot from his bowel and a portion of his pancreas.
7 The plaintiff remained in Royal Perth Hospital for approximately two to three weeks. During this time he suffered severe back pain and remained in bed. He was given medication for his pain and was subsequently transferred to the Shenton Park Rehabilitation Annexe where he remained for four weeks. During this time he underwent physiotherapy but was not allowed to move or sit up without wearing a full body plastic brace. He began walking during the last week of his stay at Shenton Park but still felt pain in his back and stomach. He also suffered from dizziness when he sat up in bed.
8 He underwent further surgery to his stomach and was discharged from Shenton Park on 3 March 2001. On returning home he was unable to walk or stand for any length of time and had to wear a body brace when he moved around and when he showered. The pain in his back and stomach was still severe and he was required to do exercises which he found exhausting. Although he had sustained a laceration to the top of his left foot which had been sutured he did not suffer any real discomfort from this injury.
9 He eventually tried to return to school in about the middle of 2001. His return, however, was short-lived and he left after only one day because of pains in his stomach and back and the strain of having to walk up flights of steps to his classroom. He went to hospital on the evening of the day he returned to school where he received medication for a bowel problem.
(Page 5)
10 Following his unsuccessful attempt to return to school the plaintiff remained at home for about two months. In July 2001 he found work as a kitchen hand at Chicken Treat. In this position he was required to take orders for food and do a certain amount of cleaning. The work did not involve any heavy lifting or other arduous physical work. He remained in this position for approximately one and a half years before finding work at Austin Scaffolding. This job required him to carry pieces of scaffolding which aggravated the pain in his back. He remained in this job for approximately eight months before moving to BGC Block Pave and then to BGC Plasterboard where he worked as a machine operator. He subsequently left BGC Plasterboard and found work at Rota-Mow as a machine operator. His current work requires him to operate a computer and manually adjust and lift a hoist which he is able to do. The job requires him to stand for long periods and he still suffers from a stiff back at nights. He no longer takes any medication or receives any treatment for his injuries.
11 The plaintiff has a 20 centimetre scar running from below his navel to approximately the mid point of his chest. He is no longer able to play football or run and has difficulty picking up or carrying his three year old child. He said he still has occasional nightmares about the accident.
Extent of plaintiff's injuries
12 On his admission to hospital the plaintiff was diagnosed as suffering blunt abdominal trauma requiring open surgery for the repair of pancreatic and duodenal injuries. A laceration to his left foot was sutured and he was found to have sustained an L3 fracture with chance type configuration extending from the L2/3 disc level through the upper third body of L3 then extending into the pedicle on one side. After being in Royal Perth Hospital for two weeks he was transferred to Shenton Park where he underwent rehabilitation for approximately six weeks. When reviewed on 20 October 2003 by Dr Andrew Harper, an occupational physician, his symptoms were found to include stomach cramps, low back stiffness and pain after work and mood changes. At that time he was working as a scaffolder and Dr Harper believed he could continue in that occupation for the foreseeable future although he believed there was a risk of an increase in back pain and stiffness bringing the plaintiff's capacity to work in any form of manual occupation to an end. In his report dated 20 October 2003 Dr Harper expressed the view that the plaintiff had a mild residual disability of the lumbar spine and a mild abdominal impairment which caused constipation and recurrent abdominal pain. While the injuries he sustained in the accident might preclude him in the future from working in
(Page 6)
- a manual occupation Dr Harper was of the view that the plaintiff could continue work in a sedentary capacity.
13 Dr John Ker, a consultant physician in rehabilitation medicine, examined the plaintiff in 2005 and again in August 2006. In his reports which were admitted into evidence by consent Dr Ker said that at the time of his earlier examination on 17 December 2005 the plaintiff was working as a machine operator in a plasterboard manufacturing company and would probably retain the capacity for basic manual assembly and process work. At par 5 of his report dated 9 January 2006 Dr Ker said:
"In my view your client's future work capacity is somewhat curtailed by the injury sustained to his lumbar spine. I believe his capacity to undertake, in the course of the working day, repeated bending and lifting of weights of any substance to be compromised. I would see this as a life-long physical restriction."
14 In the same report Dr Ker expressed the view that while the plaintiff should avoid tasks which are primarily of a general labouring nature his continuing lumbar spine pain and abdominal discomfort were not so acute as to necessarily require him to retire prematurely from the workforce. He quantified the plaintiff's degree of injury as a loss of approximately 15 per cent of thoraco-lumbar spine function. In his more recent report dated 22 August 2006 Dr Ker noted that the plaintiff had changed his employment to a machine operator in a fibreglass products manufacturing company. In commenting on the plaintiff's future capacity to continue working Dr Ker said:
"In my view your client's work future has minimally curtailed by the injury that has occurred to his lumbar spine. He is now managing to lift and carry significant weights although he does find some back discomfort towards the close of the working day."
- Dr Ker went on to express the view that there were no specific tasks that the plaintiff needed to avoid in the foreseeable future although he would have to be cautious in taking on any occupation that required repeated bending or lifting. While the plaintiff's initial injuries were considered to be of moderate severity Dr Ker believed he had made quite a satisfactory recovery.
(Page 7)
Liability
15 The only witness called to give evidence in the trial was the plaintiff himself. The defendant did not adduce evidence. Relying on the evidence of the plaintiff the defendant submitted that the accident occurred in pursuance of a joint illegal activity of using a motor vehicle without the consent of the owner in which the plaintiff voluntarily accepted the risk of injury. In these circumstances it was submitted that the defendant did not owe the plaintiff a duty of care or, at the very most, only owed an attenuated duty.
16 Paragraphs 6-13 of the substituted defence read as follows:
"6. At all material times the plaintiff knew or ought to have known that the defendant was not the holder of a motor vehicle driver's licence.
7. On the 16 January 2001 the plaintiff and the defendant and the plaintiff's brother Allan Wally Wok jointly planned, conspired and agreed to:
7.1 Use and drive the motor vehicle without the consent of the owner.
7.2 Drive the motor vehicle when they were not the holders of motor vehicle driver's licences.
(joint illegal enterprise).
8. On the 16 January 2001 the plaintiff and the defendant and the plaintiff's brother Allan Wally Wok proceeded with and carried out their joint illegal enterprise.
9. At no material time was the plaintiff wearing or had properly secured a seatbelt available to him for his safety in the motor vehicle.
10. The defendant admits each allegation in paragraph 3 of the statement of claim.
11. By reason of the facts pleaded in paragraph 7, 8 and 9 of the defence the defendant did not owe a duty of care to the plaintiff or alternatively the defendant owed an attenuated duty of care to the plaintiff which the defendant did not breach.
(Page 8)
- 12. At all material times the plaintiff fully knew or ought to have known the risk of injury to himself when travelling as a passenger in the vehicle in the circumstances pleaded in paragraphs 7, 8 and 9 of the defence and when the defendant:
12.1 was only 16 years of age;
12.2 was an inexperienced driver;
12.3 was driving the motor vehicle without qualifying to hold a drivers licence;
12.4 and Allan Wally Wok were joy riding, speeding and doing 'burn-outs' in the motor vehicle.
12.5 and other passengers were at risk of pursuit by the police.
13. The plaintiff voluntarily consented to accept the risk pleaded in the preceding paragraph."
- The "no duty" defence was based upon the decision in Gala & Ors v Preston (1990-1991) 172 CLR 243 where the plaintiff had been injured while a passenger in a motor vehicle accident after he and others had stolen the car and consumed a large quantity of alcohol. In examining the question whether a duty of care was owed the High Court focused on the importance of examining the relationship between the driver and the injured passenger and said at p 254:
"So, in the present case, it is a matter of examining the relationship between the respondent and the first appellant with a view to ascertaining whether there was a relationship of proximity such as to give rise to a relevant duty of care on the part of the first appellant as driver of the motor vehicle to the respondent as his passenger. The respondent does not contend that, if such a duty of care arose the appropriate standard of care was other than the ordinary standard of care to be expected of a driver to a passenger in the vehicle.
When attention is given to the circumstances of the present case it is difficult to see how they can sustain a relationship of proximity which would generate a duty of care. The joint criminal activity involving the theft of the motor vehicle and its illegal use in the course of a spontaneously planned 'joy ride' or
- adventure gave rise to the only relevant relationship between the parties and constituted the whole context of the accident. That criminal activity was, of its nature, fraught with serious risks. The consumption by the participants, including the first appellant, of massive amounts of alcohol for many hours prior to the accident would have affected adversely the capacity of a driver to handle the motor vehicle competently. Despite the surprising conclusion of the primary judge, each of the parties to the enterprise must be taken to have appreciated that he would be encountering serious risks in travelling in the stolen vehicle when it was being driven by persons who had been drinking heavily and when it could well be the subject of a report to the police leading possibly to their pursuit and/or their arrest. In the special and exceptional circumstances that prevailed, the participants could not have had any reasonable basis for expecting that a driver of the vehicle would drive it according to ordinary standards of competence and care.
In this situation the parties were not in a relationship of proximity to each other such that the first appellant, as the driver of the vehicle, had a relevant duty of care to the respondent, as a passenger in the vehicle."
- Relying on this authority counsel for the defendant submitted that the accident giving rise to the plaintiff's injury occurred in pursuance of the joint unlawful activity of using a vehicle belonging to the plaintiff's parents without their consent. It was also submitted that the plaintiff voluntarily accepted the risk of injury by agreeing to travel in a vehicle which he knew was going to be driven by his unlicensed 16 year old brother, and later, after the change in drivers took place, by the inexperienced and unlicensed 16 year old defendant. It was argued that in these circumstances no duty of care existed particularly as the accident was a consequence of the inexperienced defendant's lack of driving skill as opposed to any wilful act of reckless or dangerous driving on his part.
17 The 15 year old plaintiff certainly knew the vehicle was being used without his parent's consent. His 16 year old brother had driven the vehicle on the previous day and the plaintiff admitted he felt some disappointment at not being invited to travel in the car on that occasion. It is also beyond question that, during the first leg of the journey when his 16 year old brother drove the car, the plaintiff knew the vehicle was being driven at excessive speeds and, on at least two occasions, that his brother deliberately made the wheels of the vehicle spin on the road surface. This
(Page 10)
- all occurred before the second leg of the journey when the defendant took over the driving. It was submitted by the defendant that the plaintiff had no reason to believe the defendant would drive any differently to his older brother. He knew the defendant was unlicensed and, from what he had been told, had only limited experience in driving a manual vehicle. He also had two opportunities to get out of the vehicle, the first being at the service station when they stopped to refuel and the second in Brilliant Rise when the changeover occurred. But he chose to remain in the vehicle even though it was only a short walk home. It was also argued by the defendant that the defendant's loss of control of the vehicle was due to his lack of skill and experience rather than to any deliberate act of wilful or dangerous driving on his part. Given the plaintiff's knowledge of the defendant's driving inexperience, the fact that he willingly chose to be a passenger in a vehicle which he knew ought not to have been used in the first place and his decision not to get out of the car after the first leg of the journey when his brother drove it was submitted that he must have appreciated the serious risk he took in remaining in the vehicle when it was driven by the defendant. On the strength of the decision in Gala & Ors v Preston counsel for the defendant submitted that in these circumstances there was no relationship of proximity between the plaintiff and defendant and that the latter did not owe a duty of care to the plaintiff as a passenger in the vehicle. In the alternative it was argued that the plaintiff fully appreciated the risk and voluntarily accepted it.
18 I am unable to agree with the defendant's submission that the circumstances of this case correspond with those in Gala & Ors v Preston (supra) or Kickett v State Government Insurance Commission (1997) 26 MVR 321. In the first place I cannot accept that the plaintiff was a party to a joint illegal venture at the time the accident occurred. What he and his elder brother did, while quite obviously wrong, fell far short of the type of criminality involved in the authorities referred to. Neither the plaintiff nor his brother was charged with stealing. While they certainly had no right to take their parents' car what they did was essentially foolish rather than criminal.
19 I am also unable to accept the defendant's assertion that the plaintiff was or ought to have been alerted to the manner in which the defendant might drive by the way his own brother drove during the first leg of the journey. While the plaintiff certainly chose to remain in the car after his brother had driven the vehicle at excessive speeds and on at least two occasions deliberately caused the vehicles wheels to spin during a journey of about 15 minutes I do not believe his appreciation of his brother's deliberate dangerous driving carried over to the manner in which the
(Page 11)
- defendant might drive the vehicle. After the car left the service station the plaintiff still did not know the defendant was going to drive. He only realised this when his brother and the defendant changed positions in Brilliant Rise. Unlike the plaintiff's brother, who was driving his mother's vehicle and might be expected to have been less inhibited about the way he used it, the defendant was driving someone else's car and was probably likely to be more constrained. But, even if the plaintiff ought to have anticipated the defendant might be inclined to drive in the same way as his brother did, he took the express precaution of telling him before he set off not to do burn-outs or drive stupidly and, when the defendant, obviously heedless to this warning, accelerated down the cul-de-sac, the plaintiff again told him to slow down. Short of getting out of the car, which by then was impossible, there was little more the plaintiff could have done. He was only a short distance from home and assumed the defendant would drive straight there.
20 Whatever else the plaintiff might have consented or agreed to I am satisfied he did not appreciate the defendant would drive the car recklessly. In Cook v Cook (1986) 162 CLR 376 a passenger in a vehicle was injured in a motor vehicle accident in circumstances where the driver was totally inexperienced but was applying for a learner's permit and had been invited by the passenger to drive the vehicle. The High Court, after emphasising that the standard of care required of a driver was that reasonably to be expected of an experienced, competent person, went on to describe how that standard might vary in special and exceptional circumstances that affected and transformed the relationship between the driver and the passenger. At p 388 of the joint judgment of Mason, Wilson, Deane and Dawson JJ the following passage appears:
"In these circumstances, the appellant's known incompetence and inexperience as a driver was a controlling element of the relationship of proximity between the parties. That special element of the relationship took it out of the ordinary relationship between a driver and passenger into a special category of relationship between a driver who is known to be quite unskilled and inexperienced and a passenger who has voluntarily undertaken to supervise his or her driving efforts. The standard of the duty of care which arose from that distinct relationship of proximity was that which could reasonably be expected of an unqualified and inexperienced driver (but with some knowledge of the controls of a motor vehicle) in the situation in which the appellant was placed when the respondent instructed her to turn left into Eton Street. Actions which are
(Page 12)
- fairly to be seen as the result of that inexperience and lack of qualification rather than as having been caused by superimposed or independent carelessness did not, of themselves, constitute a breach of the duty of care which the appellant owed to the respondent."
- This is where the issue of the manner of the defendant's driving becomes critical. Counsel for the defendant submitted that the accident was a consequence of the defendant's lack of skill and experience. It was submitted that the plaintiff, while only 15 himself, knew the defendant was unlicensed and lacked the necessary skill to drive an automatic vehicle. Knowing all this the plaintiff still agreed to travel in the vehicle as a passenger. In these circumstances it was argued that the relationship between the young, inexperienced driver and his 15 year old passenger gave rise to an attenuated duty of care which did not extend to any piece of driving that was a result of inexperience and lack of qualification. Counsel for the plaintiff conceded that if the accident was a consequence of the defendant's youth and inexperience the defence of no duty or absence of breach of duty might apply to relieve the defendant of liability. But it was submitted by counsel for the plaintiff that the accident was not a consequence of the young and inexperienced defendant's lack of driving skill. On the contrary it was argued that the fierce acceleration of the vehicle was deliberate and that the accident was a consequence of superimposed recklessness on the part of the driver which constituted a breach of the duty of care owed to the passenger.
21 I agree with this submission. I am not prepared to conclude, as counsel for the defendant submitted, that the defendant lost control of the vehicle because of his lack of skill or experience. I am satisfied he deliberately accelerated the vehicle down the cul-de-sac, ignoring the plaintiff's warning to slow down, and lost control of the vehicle after travelling approximately 100-150 metres before travelling onto the incorrect side of the road and hitting the tree. The acceleration of the vehicle, the distance it travelled down the cul-de-sac and the fact that it went off the road altogether lead me to conclude that the defendant deliberately drove the vehicle dangerously. It was a wilful piece of dangerous driving.
22 I am satisfied that the plaintiff did not appreciate or consent to this aspect of the defendant's conduct. Everything points to the contrary. Given this finding I am satisfied that the defendant owed the plaintiff a duty of care.
(Page 13)
23 While the defence of voluntary assumption of risk is open to the defendant I am satisfied it does not apply here. The findings I have made in relation to the defence of "no duty" apply with equal force to the defence of volenti. The defendant has not discharged the onus of proving that the plaintiff fully appreciated and voluntarily accepted the risk of the defendant's wilful act of dangerous driving. The defence of volenti non fit injuria must fail.
Contributory negligence
24 The defence of contributory negligence in circumstances such as these was discussed by Pullin JA in Avram v Gusakowski (2006) WASCA 16 where he said at pars 25-28:
"25. The no duty defence depends upon the knowledge and acceptance by the passenger that he or she should be driven by a drunken driver. That requires an examination of the particular circumstances of the case: Joyce's case at 57: Cook v Cook (supra) and Gala v Preston (supra). I have already quoted Burt CJ's statement of what has to be shown to make out the voluntary assumption of risk defence. As with the no duty defence, it depends upon an examination of the circumstances and the conduct of the particular participants, not the conduct of a hypothetical participant.
26. On the other hand, the standard of care in contributory negligence depends upon foreseeability, not of the particular participants but of a reasonable person. See Commissioner of Railways v Ruprecht (1979) 142 CLR 563 per Mason J at 570.
27. More specifically, McHugh J in Joslyn v Berryman (supra) at [38] said:
'Hence, the issue is not whether a reasonable person in the intoxicated passenger's condition – if there could be such a person – would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person – a sober person – would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver's intoxication."
(Page 14)
- 28. This explains why it is possible for a defendant to fail on the no duty defence and the voluntary assumption of risk defence and yet succeed in establishing that there was contributory negligence on the part of the passenger. This result can be seen in many cases."
- In determining whether a child is guilty of contributory negligence the relevant standard of care is that to be expected of an ordinary child of the same age. Joslyn v Berryman (2003) 214 CLR 552. In comparing the culpability of the 16 year old driver and the 15 year old passenger I am satisfied that the blameworthiness of the driver was far greater than that of the plaintiff. The plaintiff was certainly culpable in agreeing to be a passenger in a car belonging to his parents when he knew his parents had not consented to the car being used. He is also blameworthy in being a passenger while the car was driven by an unlicensed 16 year old driver. He certainly ought reasonably to have foreseen the likelihood of an accident occurring as a consequence of the defendant's inexperience and lack of skill. But, as I have already found, those factors did not cause the accident. Taking into account the blameworthy factors I have mentioned I believe any award of damages to the plaintiff should be reduced by 10 per cent to reflect his contributory negligence.
Damages
Plaintiff's loss of working capacity
25 In July 2001 the plaintiff was able to begin work and he has remained in consistent employment, with a gap of approximately three months, since that time. His work has included manual labour although, as the medical evidence suggests, his capacity to perform tasks which involve heavy lifting or bending is limited.
26 I am satisfied on the medical evidence that the plaintiff has substantially recovered from his injuries. His history of consistent employment and the nature of the work he has done are evidence of that. He has an impairment of 15 per cent of the thoraco-lumbar function of the spine but is no longer suffering any pain or significant limitation of movement. As to his future I am satisfied from Dr Ker's reports that the plaintiff's future capacity to work may be impaired by his injuries although it was impossible to be precise as to whether and to what degree this restriction might manifest itself. There is a chance that at some time in the future his capacity to do the type of work he is doing may be curtailed and he might have to turn to work of a more sedentary nature.
(Page 15)
- He is entitled to be compensated for the chance or risk of future unemployment or less remunerative employment.
27 I would award the plaintiff $10,000 for the impairment of his working capacity.
Pain and suffering and loss of amenities
28 The plaintiff sustained severe injuries in the accident and had to undergo open surgery in respect of his pancreatic and duodenal injuries. The laceration to his foot had to be sutured and, more importantly, his spinal fracture required him to remain bedridden for four to six weeks before he was able to move using a polythene jacket which he had to wear for approximately another six weeks. His convalescence was slow and painful. He felt depressed when in hospital but his depression did not persist. The plaintiff's loss of amenities include his incapacity to play football or other sports as he did before the accident. He also said that he had difficulty picking up and carrying his three year old child.
29 Finally, the plaintiff has a significant disfigurement. The operational scar to his abdomen is certainly unsightly and something he is sensitive about.
30 Section 3(c) of the Motor Vehicle (Third Party Insurance) Act 1993 provides that awards of general damages for non-pecuniary loss must be assessed pursuant to a determination of the proportional severity of the injury in comparison to a most extreme case for which a prescribed sum of $279,000 is currently reserved.
31 I would assess the plaintiff's loss at 20 per cent resulting in an award of $55,100.
Future medical expenses
32 I make no award to the plaintiff under this heading.
Past medical expenses
33 These have been agreed by the parties.
Summary of award
Loss of earning capacity $10,000
General damages $55,100
$65,100
(Page 16)
Less 10 per cent deduction for contributory
Negligence $ 6,510
$58.690
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