Woods v Leane No. DCCIV-00-109

WOODS V LEANE
[2002] SADC 5
Judge Bishop
Civil

In this action, Jamie Daniel Woods (“the plaintiff”) claims damages in negligence from Stacey Leane (“the defendant”) for injuries that he sustained in a road accident which occurred around midday on Tuesday, 4 February 1997 in Thistle Avenue, Klemzig, when he was working as a “runner” with a refuse truck collecting recyclable refuse from outside residential premises. As a pedestrian, he was moving across the road and was struck by the Holden Torana sedan being driven by the defendant. Both liability and damages are contested.
The pleadings
Against the defendant, the plaintiff has pleaded that she was negligent in that she failed to exercise due care, failed to keep a proper lookout, drove at a speed excessive in the circumstances and failed to stop, slow down, swerve or otherwise manoeuvre her vehicle so as to avoid the collision. In her defence, the defendant has denied negligence and pleaded that the accident was “inevitable” and occurred notwithstanding the exercise of all reasonable care and skill on her part. The defendant has also pleaded that the plaintiff was contributorily negligent in that he failed to keep a proper or adequate lookout and “suddenly and without warning walked, ran or otherwise moved into the path of the Defendant’s vehicle.”
Uncontentious issues
Concerning the accident, five witnesses gave direct evidence – the plaintiff, Mr Jarrod Norton (a co-runner with the plaintiff), Mr Wayne Soltes (the truck driver), the defendant and Mr Philip Grace (the defendant’s passenger). An expert report of Mr Christopher Hall was also tendered (exhibit D1 (8‑11)) for the defendant. I shall later refer to the evidence (with my added emphasis). Upon the evidence, I am satisfied that the following uncontested position has been established, on the balance of probabilities.
1.On the day of the accident, the plaintiff was working with Mr Norton and Mr Soltes for Kerbside Recycling, a business owned by Mr Brian Churcher. He had been working as a casual (“on-call”) employee of that business for about six months from July 1996 (according to his wages records – exhibit P9).
2.As runners, the plaintiff and Mr Norton were required physically to pick up recyclable hard waste (cardboard and paper) deposited on footpaths outside suburban residential premises, to run with that waste to the truck being driven by Mr Soltes and to throw the waste into the compactable back of the truck. Any bottles found amongst the waste were placed in hessian bags hanging from hooks on each side near the back of the truck. As the truck progressed, one runner collected waste from footpaths on the passenger’s side of the truck and the other runner collected waste from footpaths on the driver’s side of the truck.
3.As a safety measure, the runners were required to wear (and were wearing) coloured vests. There were two flashing, orange-coloured beacon lights mounted on the truck, one at the front (on the cabin roof) and the other at the back (near the top of the compactus). To alert the runners of the approach, from either direction, of any motor vehicles, Mr Soltes sounded the air horns or activated the air brakes of the truck.
4.The day was very hot. The truck had previously returned to the depot and unloaded, after which it went to Thistle Avenue, Klemzig, where work was to recommence. In Thistle Avenue, the truck stopped adjacent to where waste was first to be collected. Before recommencing collection, the runners were engaged in “setting up” the truck, by hooking a hessian bag on to each side of the truck. The plaintiff was working on the driver’s side of the truck.
5.While the runners were “setting up” the truck, Mr Soltes alighted from it for the purpose of draining the air tanks, a daily task which was his responsibility to perform. When he alighted, both beacon lights were flashing and the truck engine was left running (T415). He also activated the four flashing hazard indicator lights positioned at the front and rear of the vehicle, because the truck was being “set up” (T415).
6.Where the accident occurred, Thistle Avenue was about 8 metres (7.98 metres precisely) in width from kerb to kerb. The truck was 2.5 metres in width and 8.85 metres in length. The defendant’s Torana sedan was 1.6 metres in width and 4.04 metres in length. The truck was stationary and facing in a northerly direction. The Torana was moving in a southerly direction. There were no other vehicles in the vicinity. The speed limit in the area was 60 kph.
The evidence
According to the plaintiff, when Mr Soltes stopped the truck in Thistle Avenue, he (Mr Soltes) said that, “he [had] parked it in the middle so that no cars could get through” (T64). After hooking-on his hessian bag, the plaintiff went to collect his first pick-up of refuse on the driver’s side of the vehicle. In his words (T66),
“I took about two to three backwards steps to turn around and in that time, that split second, a car hit me and, yes, I was on the bonnet.”
He demonstrated those steps, in evidence, by facing across the back of the truck towards the passenger’s side and turning in an anti-clockwise direction (T727), against any approaching traffic (T69-70). He had a “split second glance” of the Torana before it collided with his right leg (T66). He had not heard the air horns of the truck, a car horn or any screech of brakes. He was not holding anything in his hand when he stepped back. In his recollection, he was struck about the middle of the Torana (T67). The truck was stationary in the centre of Thistle Avenue (T72), straddling an imaginary line in the centre of the road (as he marked in photograph 4 of exhibit P4) (T75). When the Torana stopped, he rolled off the bonnet and fell on to the road in front of the car.
In cross-examination, the plaintiff acknowledged that, when standing on the driver’s side of the truck to hook-on his hessian bag, he was standing on that part of the road for traffic moving in the opposite (southerly) direction to that in which the truck was facing (T719-720). (Although he said, “Well, Wayne [Soltes] told me that he blocked off the road, so I didn’t think traffic was coming through at all” (T720), when hooking-on the hessian bag he was, in fact, standing in a position where he was able to have seen that the roadway for south-bound traffic had not been blocked off.) After hooking-on the hessian bag, the plaintiff said that he walked behind the truck and “probably asked Jarrod [Norton] whether he had put his bag on his side” (T721). He then “took two steps back and heard the roar of the car” which hit him (T722). He did not think that he and Norton had been splashing each other with water from water bottles; in his evidence, “no water bottle, which means no water” (T722). After falling to the road, Norton gave him a drink of water from a sports drink bottle (T723). He could not recall whether they had squeezable drink bottles that day (T724‑725).
Quite frankly, the plaintiff admitted to having walked backwards and stepped out from behind the truck, without looking to see if there were a car coming along Thistle Avenue in the opposite direction (T725). In his evidence (T725-726),
“I walked backwards to turn around to go and get my first pick-up of paper and cardboard .... I was finished putting on the hessian sack and then I probably asked him whether he had his on or not and then, I took two steps backwards to go to my first pick-up and got cleaned up by a car …. I thought the road was blocked off. I did not know that a car could get through. I was told that the truck was parked in the middle of the road so that no traffic could get through.”
He also readily conceded that there was probably no reason for him to have walked backwards and that one would normally walk frontwards to collect refuse (T726-727). He could not recall Mr Soltes having asked him what had happened, nor having told Mr Soltes that he and Norton were throwing water at each other (T729-730). He denied that they were doing so (T730). He did not agree that he had collided with the Torana just above the driver’s side headlight (T744).
In the evidence of Mr Norton, as he was hanging his hessian bag on to the passenger’s side of the truck, he was talking with the plaintiff as he (the plaintiff) was walking backwards “out on to the road” (T381) to hang a hessian bag on to the driver’s side of the truck, although he could not recall seeing a bag in the plaintiff’s hand (T366). He saw the collision. The truck was parked, “pretty much in the middle of the road, it was away from the [passenger’s side] kerb a good metre” (T370). The plaintiff, he said, “had walked probably two steps further back [facing the passenger’s side of the truck (T391)]….. he was walking backwards at the time the car hit him” (T388-389). Mr Soltes had begun to drain the tanks on the passenger’s side of the truck (T369). The Torana, which was still accelerating (T392), did not begin to brake until at least five metres beyond the point of impact (T393). To enable the ambulance to pass between the truck and the Torana, Mr Soltes moved the truck (T379). Mr Norton denied that he and the plaintiff had been splashing each other with water from drinking bottles before the accident (T397-398).
In the evidence of Mr Soltes, after turning into Thistle Avenue he parked the truck, “just over, maybe over one side or on the [imaginary centre] white line to set it up” (T407). “Basically”, he said, “I was parked in the middle of the road” (T407). By pulling over to the middle, he explained, “the cars have to slow down while trying to get around you” (T408). Then (somewhat inconsistently with that evidence) he said that he was aware that a car would not be able to pass the passenger’s side of the truck (where he was engaged in draining the air tanks) because the truck was pulled over on the passenger’s side (T409), probably up to “a metre to 2 [metres]” from the passenger’s kerb (T425). A car would have been able to pass on the driver’s side but, “you would have had to slow down to get through there .... we weren’t allowed to block the road completely” (T409-410). He indicated the position in which he had parked the truck by marking (on photograph exhibit P4A) a position with the driver’s side close to the imaginary centre of the road, that is, he said, “on the line or just you know a couple of inches or a foot away whatever” (T424).
From his position on the passenger’s side of the truck, Mr Soltes heard the collision (T414). He saw the Torana still moving, “probably a few metres past my truck, anything up to 5 [metres] I would say” (T417). Then (again inconsistently) he said that the back of the Torana stopped, “probably a metre maybe” (T427), “a metre, a metre and a half” (T429) past the back of the truck. He also said that he had seen the plaintiff fall from the bonnet of the Torana (T419) and end up sitting “probably 2 metres in front of” that vehicle (T427). He moved his truck because the Torana was too close to the back of it for the ambulance to pass through (T434). Mr Soltes said that he asked the plaintiff and Mr Norton what had happened and was told that they were throwing water at each other (T437). Although he said that he had not seen them doing so, he agreed that it was possible that, on 11 June 1997, he had told a loss adjuster that he had seen them doing so (T438).
At the time of the accident, the defendant was driving her Torana sedan south along Thistle Avenue with her passenger and partner, Mr Grace, to purchase cigarettes from a delicatessen. She was travelling, “Around about 50 ks I would say, or around about 45 to 50 km” (T795). As she approached the truck, she said (T795),
“I saw a few people behind it and sort of just vaguely lifted my foot off the accelerator… I saw a few feet behind the truck .… people’s feet, legs, feet …. and I just sort of lifted my foot off the accelerator because that’s the natural reaction that you do, but not really slowed down at all, maybe 5 ks I would have slowed down.”
The legs or feet (which she had observed “from the side” of the truck as she approached (T822)) were positioned more towards the far side of the road, from around the centre of the truck (T797):
“They looked like workers’ feet that were collecting garbage for the garbage truck. They looked like they were standing behind the truck throwing garbage into it or whatever they were” (T803).
In the defendant’s evidence, when the front of the Torana’s bonnet was “approximately one foot from the rear of the truck”, she saw the plaintiff “running out from behind the [truck] backwards into the side of my car, the very front edge of my car …. above the headlight on the right-hand side” (T799). She described him as having taken “One [step] at the most” between emerging from behind the truck and colliding with the Torana (T800). Her examination in chief continued (T801):
"Q“As you saw him emerge did you take any action to try and avoid hitting him, such as braking or swerving.
AWell there was no time at the point that he emerged, I hit the brakes instantly but there was no room to swerve, it sort of happened immediately. There was no time to react sort of thing apart from hit the brakes.”
When she began to pass the truck, she said that the driver’s side of the Torana was “approximately one to two feet” from the driver’s side of the truck, “the average distance that cars would pass as they were driving down, a little bit more because the truck was parked more on the side of the road, but I would say a maximum of one to two feet”, with “probably three foot” between the left-hand side of the Torana and the (eastern) kerb, “the normal driving distance that you have” (T801). She estimated that her vehicle stopped “probably four to five metres” after applying the brakes (T801). As the car collided with the plaintiff, she saw a water bottle flying through the air (T802). She believed that the Torana was travelling, “Between around about 35 to 40 kph” at the time of the collision (T804).
In cross-examination, the defendant (who was 24 years old at the time of the accident and had been driving the Torana for about seven years) said that she did not recall having seen either an orange-coloured flashing beacon light or flashing hazard lights as she approached the truck (T809):
“It looked to me like the truck was just parked on the side of the road and people collecting garbage. I don’t recall seeing lights or signs or anything like that.”
Regarding what she had seen of the plaintiff running backwards, her cross- examination proceeded (T810):
"QYou’ve said that you saw [the plaintiff] run backwards.
AYes.
QBut you’ve said that it was no more than one step.
AYes, it would have been basically the edge of the truck, sort of a step here, and then my car would have hit it on the sort of second step backwards, from what I recall but –
QSo on the basis of one step you are quite happy to say that he was running.
AYes, it was definitely a run. It was a get out the way type thing, running backwards, it wasn’t a casual step backwards.”
When again asked to indicated the distance which separated the drivers’ sides of the truck and the Torana, the defendant confirmed a distance of “one to two feet” (T811), “around about” the width of the court reporters’ desk or “About two and a half foot” (T811) (which, upon measurement, was 822 millimetres or about 2 ¾ feet in width). She said (T812),
“I recall – I know there was a reasonable gap between my car, I can’t tell you precisely no because I wasn’t standing there measuring, I wasn’t expecting people to run out backwards behind trucks and things.”
She estimated that the Torana was probably positioned two-thirds from the gutter and one-third from an imaginary centre line (T813).
During her cross-examination, there was the following exchange between the defendant and me (T815-816):
"Q“Did it occur to you, as you approached, having seen the feet or legs at the back of the vehicle –
AYes.
QThat those feet or legs, or some of them, might move to the side of the vehicle in you direction.
ANo, it didn’t because as far as I was concerned they were collecting garbage from the side of the road, there was no reason for them to step out, certainly not run out backwards from behind the truck.
QUnless they were also going to collect garbage from the other side of the road.
AI assumed if they were going to do that they would have stopped and checked the vehicle, not ran out backwards from the truck if they were collecting garbage from the other side of the road. I assumed it was part of their job to check vehicles, not just wander aimlessly backwards from behind trucks and things.
QDid these feet or legs that you saw appear to be moving?
AJust sort of vaguely but not in my direction, not to give me any indication they were going to step out from behind the truck at all, no.”
As she drew level with the truck, she moved her attention away from those feet or legs, because there was no reason for continuing to look (T816).
The defendant denied that she had approached the truck at too fast a speed, in the circumstances, and that she should have slowed down quite considerably (T817). When the Torana collided with the plaintiff, she was travelling between 35 and 40 kph (T818). She recalled that the truck looked, “as though it was on its side of the road, near the centre but on its side of the road” (T825). “It looked like a truck that had stopped to collect garbage” (T825-826). In her evidence, there was a “perfectly reasonable” amount of space on her side of the road to pass the truck. “There was nothing narrow, there was no excessive width” (T826). She continued (T827):
“there was room towards the side of the road I could have gone towards but there was no reason to do that because there was nothing to tell me it was going to happen until it already did. There wasn’t a lot of room but there was enough. If I had seen him standing on the side of the road I’m sure I would have stopped.”
As far as she was aware, garbage collectors went up one side of the road and then down the other side (T828). The defendant did not entertain the possibility that someone might run out backwards from behind the truck – come to the side of the truck, maybe, but not step out backwards from behind the truck (T829). She did give thought to someone stepping out in front of her, because she eased her foot off the accelerator when she saw the feet or legs, saying (T829),
“It’s a natural reaction when you see something on the road you slow down; I could see they were workmen, I didn’t give it much further thought once I had processed the fact that that’s what they were.”
In the evidence of Mr Grace, the Torana’s speed was “just 40 ks, something like that” (T839) when he saw the stationary truck facing towards them, “parked on the side of the road”, “the way you park a car” on its correct side of the road (T840). He did not notice any activity around the truck. From his perspective, when the front of the Torana was “about a foot” from the back of the truck (T841),
“It all happened very quickly at that point, just a flash of someone appearing behind the back of the truck ….. At that point [the defendant] jumped on the brakes …. stopped very quickly.”
He saw the plaintiff, “like flying backwards into the car, jumping a step maybe backwards” (T841). One of the plaintiff’s companions had a water bottle and offered the plaintiff a drink (T842).
Mr Grace said that no vehicles were moved for the ambulance to get through (T483), although he could not recall whether the ambulance had gone before he and the defendant departed (T844). He recalled seeing a water container flying across the Torana’s windscreen as the plaintiff rolled over on to the bonnet (T844). He was not able to say what distance separated the two vehicles, although the Torana “would have been to the left of the [centre] line” and “would have moved over a little bit” towards the gutter (T845). He did not notice any lights on the truck.

In cross-examination, Mr Grace described having observed the plaintiff “moving rapidly backwards” and “moving very quickly backwards from behind the truck …. jumping, quick step” (T855). He continued (T855),
“It was rapid. It wasn’t a small step backwards …. I didn’t see him jumping but, as I said, there must have been three or four feet, probably three feet distance between [the defendant’s] car and the truck, so it must have been a reasonably big jump backwards to get there.”
Then he added (T856),
“if [the plaintiff] had taken one step backwards and stopped, well he wouldn’t hit the car…. and he didn’t just walk slowly across the road …. he jumped out from behind the truck.”
Findings
To my mind, all of the witnesses endeavoured honestly to recall events which had occurred in a very brief interval of time nearly five years ago. Upon all of the evidence (including the report of Mr Hall), I am satisfied and find that the accident occurred in the following factual circumstances.
1.After turning north into Thistle Avenue, Mr Soltes stopped the refuse truck with the driver’s side close to an imaginary line in the centre of the road, leaving a distance of about 1.5 metres between the passenger’s side of the truck and the western kerb alignment. With the engine running and the flashing beacon and hazard lights operating, he alighted from the truck to drain the air tanks on the passenger’s side, while the plaintiff and Mr Norton were hooking their hessian bags on to each side of the truck.
2.From the opposite direction, the defendant’s Torana sedan was moving south in Thistle Avenue about 50 kph. As she approached, she observed, from under the driver’s side of the truck, movement of the feet or legs of workmen who were standing behind the truck. Slightly easing her foot off the accelerator, she began to pass the truck about 40 kph, with about 75 centimetres (or 2¹/₂ feet) separating the driver’s sides of the two vehicles.
3.When the front of the Torana was about to pass the back of the truck, the plaintiff stepped quickly backwards from behind the truck and into the path of the Torana, without looking where he was stepping, his right leg colliding with the front of the Torana just above the driver’s side headlight. At the moment of impact, the plaintiff was also turning in an anti-clockwise direction and taking a second step backwards. (Upon this finding, I do not consider it necessary or appropriate to determine whether, in stepping backwards, the plaintiff was in the course of picking up waste or whether he and Mr Norton were engaged in throwing water at each other, which has not been pleaded. For whatever reason, admittedly, without looking where he was going, the plaintiff stepped backwards across the road and into the path of the Torana.)
4.When the plaintiff emerged from behind the truck, the defendant applied her brakes as quickly as possible. The Torana stopped behind the truck, in a position which later required that the 8.85 metres long truck be moved to enable the ambulance to pass those vehicles.
5.Upon the assumption that a reaction time of 1.5 seconds could be achieved and that the defendant had been travelling at 50 kph, it would have taken her approximately 35 metres to stop. Had the plaintiff stepped from behind the truck when the defendant was within 35 metres of that location, she could not have avoided the collision.
6.With the truck parked 1.5 metres from the left-hand (western) kerb alignment and the right hand side at the centre of the road, assuming that there was one metre clearance between the Torana and the eastern kerb alignment, there would have been 1.4 metres between the truck and the Torana. In those circumstances, there would have been only 1.6 seconds for the defendant to stop and avoid the collision, travelling at less than 6 kph. Had the truck been parked 0.5 metre from the western kerb, the plaintiff would have taken longer to reach the approximate point of impact (and would have taken more than two steps), the defendant would have had 2.6 seconds within which to react and the safe speed would have been 28 kph. (As Mr Hall remarked in his report, “the critical issues for accident avoidance are pedestrian and vehicle speeds …. there was a very short lateral distance over which [the plaintiff] moved before the collision, and consequently, [the defendant] may not have been able to avoid the collision unless she had been travelling at less than 30 kph. How much less than 30 kph would depend on how the truck was parked.”)
Legal considerations
The proper test for negligence is, as the High Court recently restated in Derrick v Cheung (2001) 181 ALR 301, at 305,
“whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care.”
The standard of the defendant’s care was that which a reasonable person would observe in driving a car, that is to say in executing an activity which requires skill, alertness and concentration and which has the capacity, if carelessly executed, to cause great harm to others. The standard of the plaintiff’s care was the care for his own safety to be expected of a reasonable person engaged in an ordinary activity requiring no special skill and only ordinary concentration, and exposing that person to no danger beyond the commonplace danger involved in being a pedestrian on the public road (see King CJ in Evers v Bennett [1982] 31 SASR 228, at 229). When both are at fault, as Windeyer J remarked in Teubner v Humble (1963) 108 CLR 491, at 504 (and Bray CJ applied in Pollard v Ensor [1969] SASR 57, at 60),
“the question is how far in the circumstances did the motorist depart from the standard of care of a reasonable man driving a motor car, and the pedestrian from the standard of care of a reasonable pedestrian.”
In the typical case of a pedestrian run down by a motorist in daylight, due to inadvertence of one or both of them or undue speed of the motorist, because of the high duty of care imposed upon motorists, vis-à-vis pedestrians, courts have often required the motorist to bear the higher proportion of blame, although each case must be judged on its own facts (see Jacobs ACJ in Weydling v Halsey, reasons for decision delivered in the Full Court on 2 November 1990). Many of the reported cases until 1986 were reviewed by me in Georganas v Povey and Australian Postal Commission (1986) 130 LSJS 125. As there remarked (at 131), the cases indicate that the opportunity afforded to the motorist of observing the pedestrian and avoiding the accident is a relevant consideration in the apportionment of responsibility.
For the defendant, it has been pleaded that the accident was “inevitable” and occurred notwithstanding the exercise of all reasonable care and skill on her part. However, as the High Court observed in Derrick’s case (supra, at 305),
“Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence.”
For reasons which I shall endeavour to explain, this is not a case, in my view, where the plea of inevitable (or unavoidable) accident should succeed.
For the plaintiff, it was submitted (initially) that, because he was not aware that Mr Soltes had alighted from the truck, he was entitled to assume that there was no approaching traffic, the air horns or air brakes of the truck not having been activated in accord with the normal practice. I was invited to adopt what Mr Doherty referred to as “the general principles of joint tortfeasor liability”, even though neither Mr Soltes, Kerbside Recycling nor Mr Churcher is here joined as a defendant (T932). Such an approach I purported to adopt in Vail v Formato (reasons for decision delivered on 10 October 1989), in reliance upon what Wells J described in Nathan and James v Vos [1970] SASR 455, at 476-477, as “the ordinary principles of the common law”, after apportioning responsibility, pursuant to the now repealed section 27A (3) of the Wrongs Act, of these persons who caused the accident. Upon appeal, in reasons for decision delivered on 10 October 1989, the Full Court held that such an approach to apportionment of responsibility was clearly wrong in law, because the expression “any other person or persons” in section 27A (3),
“clearly contemplates an apportionment of responsibility as between the parties to the action and the reduction of the plaintiff’s claim by such proportion as is just and equitable, having regard to the respective shares of the responsibility for the accident of the parties to the action. His Honour was therefore wrong to endeavour to apportion responsibility for the accident in a way which included the responsibility of a driver who was not a party to the action at all.”

(My emphasis.)
By virtue of the common law principles to which Wells J referred in Vos’s case (supra, at 477), where only one of two or more tortfeasors is sued, the defendant (unless he claims contribution from the remaining tortfeasor or tortfeasors responsible for the damage recoverable by the claimant) is liable for the whole of the damages, reduced only by the claimant’s, but not by any other tortfeasor’s share in the responsibility for the damage. (Reason for the construction of section 27A (3) adopted by the Full Court in Vail’s case (supra) may have been based upon the audi alteram partem rule alluded to in Maxfield v Llewellyn and others [1961] 3 All ER 95.)
When reminded of Vail’s case (supra), Mr Doherty resiled from the submission that Mr Soltes contributed to the accident, but still, he said, the plaintiff’s entitlement to assume that there were no on-coming cars, because there was no customary warning given, “must dilute any criticism you might have of his behaviour” (T939). Upon this aspect, I accept the submission of Mr Swan that, in apportioning responsibility between the parties to this action, the plaintiff cannot rely upon an alleged defect in the system of work and contend that any contributory negligence should thereby be reduced. (That position would now appear to be confirmed by the provisions of the Law Reform (Contributory Negligence and Apportionment of Liability) Act, 2001; Act No 41 of 2001.)
Liability
Before the accident occurred, the defendant’s vehicle was passing and approaching the front of a large refuse truck which was stationary in a quiet suburban street, with the driver’s side close to the centre of the road and flashing beacon and hazard lights operating. Having observed the movement of feet or legs of workmen standing behind the truck, a prudent motorist in the defendant’s position would, in my view, have taken precautionary action to guard against potential danger from inattention or lack of care of those workers for their own safety. Such a motorist would have sounded her horn, moved her vehicle to the left and significantly reduced her speed. In failing to perform those precautionary measures and in continuing to pass the truck with only about 75 centimetres separating the two vehicles (there being available about 1.5 metres to the left of the Torana), I am satisfied that the defendant was negligent and did not drive with reasonable care towards a pedestrian in the plaintiff’s position.
I am also satisfied that the plaintiff’s conduct constituted a serious departure from the standard of care required of a reasonable pedestrian and that his contributory negligence has been established. Much as one may sympathise with him, in stepping quickly backwards behind the truck and turning anti-clockwise into the path of the Torana without looking where he was going, the plaintiff acted with quite foolhardy or reckless disregard for his own safety or the hazards he was likely to create for other road users. In my view, he was very much the author of his own misfortune and should bear the greater share of responsibility for the accident. He placed the defendant in an unenviable predicament. The situation was one in which the defendant had but little opportunity to observe and avoid him.
While appreciative that individuals may differ upon the apportionment of responsibility in any factual situation, taking everything before me into account, I consider it appropriate that responsibility for this accident should be apportioned 70 per centum against the plaintiff and 30 per centum against the defendant. (In that apportionment, reported cases which have been considered include Nolan v Marsh Motors Pty Ltd and Holzberger [1965] QD R 490, Pollard v Ensor [1969] SASR 57, DeSouza v Collins [1974] 9 SASR 315, Evers v Bennett [1982] 31 SASR 228, Weydling v Halsey (reasons for decision of the Full Court, delivered on 2 November 1990), Spiniello v Hurley (reasons for decision of the Full Court, delivered on 18 September 1991) and Derrick v Cheung [2001] 181 ALR 301 (reasons for decision of the High Court delivered on 2 November 1990.)

Damages
The plaintiff, who is now 24 years old (he was 19 at the time of the accident), left school in 1992 after completing year 10. For about 14 months, he worked as a “brush hand” painting houses with his brother-in-law, after which he had various jobs (T23). In July 1996, he began casual employment as a runner with Kerbside Recycling. At the date of the accident, his average gross earnings were $135.42 per week. In October 1996, he began casual employment as a storeman with United Transport Services, working at a Liquorland store. Towards the end of 1996, he was juggling his working week between those two casual jobs (T26). He did not work for United Transport after 24 January 1997. During his employment with United Transport, his average gross earnings were $207.56 per week (exhibit P5). At the time of the accident, he was looking for something more permanent and full time, a “decent job” as he said (T153).
In the collision, the plaintiff suffered a fracture of the mid-femoral shaft of his right leg. By ambulance he was taken to the Royal Adelaide Hospital, where he was admitted. Under general anaesthetic, intra-medullary Autofix fixation of the fracture was effected with cross-locking screws. With crutches, he mobilised well and was discharged three days later, on 7 February 1997. Upon returning home (he was then and is still living with his parents), for about four weeks he required his mother’s assistance in his personal needs - bathing, dressing, changing bandages, preparing meals and attending his general medical practitioner. He continued to use the crutches for about two months.
Upon review on 25 March 1997, the plaintiff’s consultant orthopaedic surgeon, Mr Daryl Teague, reported on 10 June 1997 (exhibits P1 (1-2) and D1 (12‑14)) that he was able to walk without crutches and had excellent right knee flexion from 0º to 130º. On 6 May 1997, “he was noted to limp a little but able to walk without crutches [and] had retained excellent knee movement.” He was advised to return to work at the end of May 1997. When again reviewed on 27 May 1997, Mr Teague reported that Xrays showed excellent fixation, with significant healing of the fracture and full range of right hip and knee movement. “He was able to fully squat. He could perform a jump from the squat to the erect position and was able to run on the spot.”
In evidence, Mr Teague explained that the operative procedure had involved the insertion of a metal rod (about 16 inches long) from the top of the hip area to the knee, with cross-locking screws (T249). Under general anaesthetic, the rod and screws were removed in June 1998. He expected that the plaintiff would be fit to return to heavy duties on 1 August 1998 and that he would not sustain any residual disability (T251). To Mr Teague, the plaintiff never complained of back, neck or knee pain or problems (T251-252).
After the rod was removed from his right leg in June 1998, the plaintiff became aware of pain in his lower back (T140-142). Again he had to use crutches, for about four weeks, and rely upon his mother’s assistance for personal needs. Since returning to work as a painter, about 18 months after the accident, lower back pain has persisted. (Previously, he had become qualified to drive a forklift but was not able to obtain employment.) Painting, which involves rolling ceilings, carrying equipment and climbing ladders, trestles and scaffolding, also promotes pain in his neck and right knee. When running, he feels “off-balance”, as though his knee is going to give way (T146). That sensation also occurs when walking along planks or trestles. As a consequence of the accident, his recreation activities (surfing, riding motor bikes and driving cars) were somewhat curtailed. (I say “somewhat” because, on 13 September 1997, he drove an unregistered and uninsured motor vehicle while disqualified from driving and, on 18 February 1998, was sentenced to imprisonment for 42 days, 30 days of which were spent in custody (T875).)
In the plaintiff’s evidence, he walks with a limp. He feels that his right leg is shorter than the left leg, that he “waddles” (T157) and that it is difficult to walk in a straight line (T158). He consulted a chiropractor, Dr Bradley Ferries, who suggested that a heel-lift be inserted in his right shoe. He did not pursue that suggestion. Nor did he pursue the similar suggestion of a podiatrist, Dr Andrew Burns, because, he said, “I don’t have the money and the time .... I spend most of my money on alcohol” (T202).
Mr Brian Cohen, a general surgeon, examined and reported upon the plaintiff on several occasions. He first examined the plaintiff on 18 July 1997, about five and a half months after the accident. To Mr Cohen, the plaintiff spoke of daily soreness in his neck, frequent pain in the middle of his lower back, some soreness in his right leg, discomfort in his right hip and occasional pain in his right knee. He also said that he walked with a limp. Upon examination, he was not tender in his cervical or lower lumbar spine. Upon measuring the plaintiff’s femurs, Mr Cohen could not detect any significant difference in their lengths but, he then reported (exhibit P1 (13)), “there is always a degree of inaccuracy in determining the points of measurement, particularly in the region of the greater trochanter” near the head of the femur.
Mr Cohen next examined the plaintiff on 15 September 1999, about two and a half years after the accident. He had then been working full time as a house painter for about six months. The plaintiff said that he was managing the work “most of the time”, but climbing ladders sometimes aggravated his right knee, if the lumps which had developed in that knee were accidentally knocked. His lumbar spine did not affect his painting and was “just an ache when present”. His right leg throbbed and ached, intermittently and more in cold weather. His right hip tended to “catch” in one position. Again he spoke of limping on his right leg which was shorter than the left. Upon examination, Mr Cohen noted good quadriceps muscle development in both legs, with good right and left hip joint movements. There was no specific tenderness in the right knee. Leg measurements from the greater trochanter to the lateral malleolus near the ankle, “appeared to show only ½ cm difference, which was not significant” (exhibit P1 (17)).
Mr Cohen again examined and reported upon the plaintiff on 5 October 2001. For about five months he had been working as a commercial building painter, some days with more physical difficulties than others. His cervical spine had settled. Pain in his lumbar spine persisted after work. His right leg ached at the fracture site in cold weather. His right knee joint was painful if strained or knocked. His outer right hip was only painful if it “locked” when the leg was in full flexion. On examination, Mr Cohen observed a scoliosis (curvature) of the plaintiff’s spine, convex to the right in the lower lumbar region and to the left in the thoracic spine, as confirmed in Xrays which had been taken on 10 December 1999. Mr Cohen then reported (exhibit P1 (21-22)):
“This gentleman has a continuing complaint in regards to his lower back, his right outer hip and the right knee. I note on the x-rays that there is a scoliosis present in his lumbar spine, with the resultant tip of his pelvis. I have measured the length of his legs again and on my measurement there did not appear to be more than about 6 mm difference in length on this measurement. However, such measurements are inaccurate as trying to obtain an accurate reference point is difficult …. A significant degree of shortening can result in different stresses to the lumbar spine and can produce thus a tilting of the pelvis and a corresponding scoliosis developing in the spine. However, I have not been able to, on a clinical basis, confirm that this is the reason for his scoliosis.”

(My emphasis.)
He continued:
“It is to be noted that this was a violent incident …. this may well have caused a soft tissue injury to his lower back …. There is a probability that his back condition is either a direct or indirect result of the subject incident. I believe it is more likely to be a direct result of the incident, that is from the initial trauma, and which may have been aggravated by the postural changes initially resulting from the disability to his right leg.”

(My emphasis.)

In Mr Cohen’s opinion, the disability to the plaintiff’s lower back is small. Although maintaining a very good range of movement and apparently able to carry out his duties, by the end of the working day he is adversely affected. Mr Cohen assessed that disability as “currently no more than a 2.5% impairment of his lumbar spine and lower back. However, with the scoliosis and stresses that he is placing to his back, it is possible over time (“over a few years” (T182)) for this to deteriorate and become worse.” Of the plaintiff’s right leg, in his assessment there is “no more than a 5% impairment” at the knee.
Mr Cohen confirmed, in evidence, that it was reasonable for the plaintiff not to have returned to his previous employment while the metal rod was located in his leg (T165) and for about 16 months after the accident (T182). He disagreed that an actual (as distinct from functional) leg measurement can be taken from a point in the anterior superior iliac spine (as advocated by Dr Burns, the podiatrist). Such a measurement may be affected by the tilt and bend of a scoliosis affecting the pelvis and may create the appearance of a leg shortening (T165-166). In his evidence, there is a “probability” that the plaintiff’s back would have been injured in the accident (T174). The feeling of having a shorter right leg was attributable to scoliosis having resulted from postural changes which occurred after the accident (T168). The likelihood is that the scoliosis will persist (T174). Working as a painter is likely to aggravate the plaintiff’s back, neck and right knee (T176-177). Should that occur, he will need to seek treatment (T179). Further deterioration of his back could be “quite significant” and would prevent him from continuing with that work (T179). Similar considerations could reasonably apply in relation to his right knee (T180). He is more susceptible to injury in those areas (T183).
In cross-examination, it was put to Mr Cohen that, for the future, the plaintiff’s present position is not significantly different from any other member of the work force. He replied (T193):
“Yes, it is … He’s had a significant accident to cause the fracture and the trauma that we’d expect to his knee. It has caused a complaint of pain in his back which has persisted for a while even though it has improved. He has a scoliosis which is significant; therefore, there are significant differences with him in comparing with the unaffected person of a similar age in the street – doing similar work.”

(My emphasis.)
Many people, he said, would not attempt to do that work with the plaintiff’s problems (T193). He would be very hesitant to recommend surgery for the scoliosis without knowing more about the plaintiff (T194).
Although Mr Teague had noted, on 8 May 1997, that the plaintiff limped a little, he thought “that would still be consistent with a post-injury state at that stage” (T253). He did not note any variation in leg length (T253).
Dr Ferries, the chiropractor whom the plaintiff consulted on 9 December 1999 with neck pain, reported upon and gave evidence for the plaintiff. He noticed “a significant right short leg imbalance” (exhibit P1 (30)). He requested the Xrays of 10 December 1999, which indicated cervical, thoracic and lumbar scoliosis. After spinal correction to the rotated pelvis, in his measurement there was an actual deficiency of 14 mm to the right hand side, requiring a heel-lift in the right shoe. (As previously remarked, the plaintiff did not pursue that suggestion.)
In determining the extent of the plaintiff’s right leg deficiency, Dr Ferries explained that he had adopted the Gonstead method of radiograph analysis taught in chiropractic school (T105). (A deficiency greater than 7 mm can result, he said, in significant back pain (T105).) That method involved measurement and comparison of the distances between the tops of the femurs and the bottom of the radiographs, upon the assumption that the surface on which the radiographs were taken was level (T111, 124). When he attended, the plaintiff did not complain of any back pain (T114).
Dr Burns, the podiatrist whom the plaintiff consulted on 17 February 2001 for an opinion as to the appropriateness of providing treatment for a short right leg, also reported upon and gave evidence for the plaintiff. In his report of 21 February 2001 (exhibit P1 (33-34)), the plaintiff has a short right leg by the “usual measurement” from anterior superior iliac crest to medial malleolus. He rejected the opinion expressed by Dr Ferries that spinal Xrays may assist in obtaining accurate limb measurements. (In evidence, he also disagreed with the method of measurement adopted by Mr Cohen (T231-235).)
On viewing the Xrays, Dr Burns confirmed the presence of spinal scoliosis, but said that there was no limp. In his opinion, there is no doubt that, “the fracture has resulted in a shortening of the right limb …. The complaint of lower back pain is consistent with the history of trauma and the presence of a spinal scoliosis combined with a short right limb would place demands beyond the functional capacity of the spine” (my emphasis). He provided a rear foot heel raise and medial wedge and proposed assessing the result of that trial. (As previously remarked, the plaintiff did not pursue that recommendation.)
In evidence, Dr Burns said that the plaintiff’s right leg was shorter by “well over 1 cm …. that is a clinically significant amount …. between 1 cm and 2 cm” (T84-85). Were it possible for him to have other work, in which he was not doing the same mechanically aggravating things, would be beneficial (T88). (In expressing prognostic opinions upon the plaintiff’s spinal capacity, I do not consider that Dr Burns was competent and those views have been disregarded.)
For the defendant, Mr Ross Johnson, a general and orthopaedic surgeon, examined and reported upon the plaintiff in September 1999 (Exhibit D1 (15-24)). He was unable to detect any significant limp. Upon measurement, he thought that the plaintiff’s right leg (limb) was 1 cm shorter than the left. When specifically asked for any other symptoms the plaintiff did not mention his neck and lower back. Mr Johnson doubted that he would have been capable of resuming work as a runner during 1997. In his reported opinion (Exhibit D1 (18)),
“this young man has made an excellent recovery …. He does have a small degree of right leg shortening which would not be noticeable in his day to day activities. I would assess him as having been left with a small permanent, residual disability to this right lower limb which I would assess as being 5% loss of function of this right lower limb. In my opinion he is fit for work in any unrestricted capacity and is certainly fit to perform the work required of him in his current capacity as a painter …. no future treatment is necessary at this stage nor is likely to be necessary in the future.”

(My emphasis.)
Mr Johnson again examined the plaintiff on 16 January 2001, when the plaintiff described his persisting symptoms in his right knee (if knocked), his right hip (if extremely flexed) and his lower back (which had gradually become worse). On examination, he walked without a limp and was able to squat and stand on his toes without discomfort. Mr Johnson was unable to reproduce any discomfort around the right knee or there to detect any abnormal lumps. Leg measurement again confirmed the existence of “some minimal [“minor” (T321)] right leg shortening of just over 1 cm” which “would be asymptomatic and would not result in any limp nor be noticeable to the patient, nor should it result in any lower back symptoms.” To Mr Johnson, the plaintiff’s spine was straight and “there was no scoliosis”, with a full, pain-free range of mobility. (The Xrays were not then available for viewing.)
In Mr Johnson’s opinion, the plaintiff’s gradually increasing lumbar back pain “would be more related to his subsequent employment as a painter rather than associated with the subject accident.” The degree of leg shortening was “insignificant and would not be liable to result in any lumbar spinal symptoms.” He confirmed his assessment of 5% loss of function of the right lower limb and that the plaintiff was “fit for employment in an unrestricted capacity.” Upon subsequently seeing the Xrays, he acknowledged their demonstration of “some generalised scoliosis, perhaps more marked in the lumbar area”, but opined that “the appearances may well be postural” (exhibit D1 (22)).
In evidence, Mr Johnson endorsed the method of measuring leg length adopted by Mr Cohen (from the superior trochanter to the medial malleolus) as being “the accepted technique” (T319-320). From the publication entitled “Medicolegal Reporting in Orthopaedic Trauma” (1990) (exhibit D1 (15-24)) he cited this passage , at 275,
“A myokinetic study by Morscher and Taillara (1965) showed that patients with 1 cm of shortening have a normal gait and many patients with 2 cm of shortening have a normal gait and are free of symptoms. With shortening in excess of 2 cm, which can be detected clinically, the gait is almost always disturbed.”
(Although he also cited the American publication entitled “Guide to the Evaluation of Permanent Impairment” (2000) in support of the method of measuring leg discrepancy adopted by him (T322), upon reading that text (at page 528), in fact it recommended measuring “the distance between the anterior superior iliac spine and the medial malleolus”, as advocated by the podiatrist Dr Burns.)
In cross-examination, Mr Johnson said that short leg problems (where the discrepancy exceeds 2 cms) require correction with a properly constructed shoe, not merely by putting an insert into the sole, which is totally inappropriate (T334-336). He accepted that a significant short leg may cause a correctable postural scoliosis (T336). He described Dr Ferries’ technique of measuring for leg shortening as being “totally flawed’ (T349). Although “appalled” to be debating a podiatrist’s opinion on leg measurement (T350), when it was pointed out to him that the text which he had produced supported the technique of Dr Burns, Mr Johnson said that he disagreed with that text in determining actual, as distinct from apparent, leg shortening (T354), because (as the text acknowledged) of the difficulties in measuring a person with pelvic angulation, knee flexion contracture or significant ankle edema (T357).
Dr David Kelly, a psychiatrist, examined and reported upon the plaintiff in August 1997 (exhibit P1 (24-29)), about two weeks before the offences which resulted in his imprisonment. He then presented as an irritable young man, frustrated at having “no job, no money, no car, no licence” and resorting to marijuana and excessive alcohol to help with his problems of pain. In Dr Kelly’s assessment, the plaintiff was then suffering from a mild degree of post traumatic stress disorder associated with the accident, which would spontaneously resolve with an appropriate return to work programme. When he again saw the plaintiff in November 2001, Dr Kelly reported that, “some of his problems of Alcohol Abuse Disorder are arising as a consequence of the accident …. and his attempt to deal with the psychological impact of this, however a variety of other factors are also significant in it’s development and presence … although he would benefit from intervention by a drug and alcohol counsellor, I do not feel that he requires formal psychiatric treatment.” The features of the post traumatic stress disorder were no longer present (T207).
Upon the evidence presented regarding the plaintiff’s accident-related injuries, I am satisfied that the following position has been established.
1.His right leg is about 1 cm shorter than the left leg, a difference which is asymptomatic and has not left him with a limp. (I accept the method of leg measurement adopted by the two surgeons in preference to those methods advocated by the chiropractor and podiatrist.)
2.As a consequence of the accident, he has developed a scoliosis of his spine, convex to the right in the lower lumbar region and to the left in the thoracic spine. This condition has left him with the feeling that he limps or wobbles when walking.
3.He also suffered a mild post traumatic stress disorder, from which he recovered after returning to work.
4.His residual problems relate to his lumbar spine, lower back and right knee. Although the percentage impairments of those areas are presently slight (about 2.5% impairment of his lumbar spine and lower back and about 5% impairment of his right leg at the knee), his continuing to work as a painter is likely to aggravate those problems and could prevent him from continuing with such work. He remains more susceptible to injury in those areas.
With regard to the plaintiff’s non-economic loss, it was not contended that his ability to lead a normal life was not “significantly impaired” by the injuries for a period of at least seven days (Wrongs Act, 1936, section 35A(1)(a)(i)). In application of the well-established principles referred to in Percario v Kordysz [1990] 54 SASR 259, at 260, the severity of his non-economic loss is determined as being ‘significant’, encompassing as it does the injuries sustained to his right leg and knee, the two operative procedures that were undergone, the shortening of his right leg by about 1 cm, the pain and discomfort in his neck, back and leg, the residual impairments of his back and knee and the spinal scoliosis which has since developed. Taking everything before me into account as best I am able, on a scale running from 0 to 60 (section 35A(1)(b)(i)), to the plaintiff’s “total non-economic loss” the numerical value of 12 is assigned. The “prescribed amount” referred to in section 35A(1)(b)(ii) is $1,550. That amount, when multiplied by the assigned number, results in award of the plaintiff’s damages for “total non-economic loss”, part and future, in the amount of $18,600. In that amount, therefore, his damages for total non-economic loss are assessed.
With regard to past economic loss, at the time of the accident, from the two casual jobs that he was then performing, the plaintiff’s gross average earnings (including overtime) were $342.98 per week. He was then looking for something more permanent. I found him to be an earnest, enterprising and enthusiastic young man and have no doubt that, but for the accident, he would soon have found more remunerative and satisfying full time work. Indeed, his tax return for 1997/1998 (in exhibit P6) indicated that, between 17 October 1997 and 6 February 1998 (before the metal rod had been removed from his leg), he earned the net amount of $2,536 as a painter for Marshall Thompson Homes Pty Ltd. In 1998/1999, between 15 February and 30 June 1999, he earned the net amount of $6,473, or about $360 net per week, as brush hand for a painter. From 1 July 1999 until now, he has continued to work as a sub-contracting painter, at first of houses and, more recently, of commercial buildings. As a consequence of the accident, upon my estimate the plaintiff was unable to work and did not work for about 20 months (five months in the financial year ending 1996/1997, eight months in 1997/1998 and seven months in 1998/1999). In necessarily adopting a very broad approach, applying to that period the average net weekly earnings of about $360 and allowing for contingencies, in my assessment, for past economic loss the plaintiff should be awarded $26,000, inclusive of interest.
With regard to future economic loss, although the plaintiff has shown considerable stamina and fortitude in continuing to work as an industrial painter, in view of all the circumstances, including the medical prognosis of Mr Cohen (which I accept), I am persuaded that, in consequence of the accident, he has been rendered less capable of earning income and the diminution of that capacity may be productive of financial loss (see Medlin v The State Government Insurance Commission (1995) 182 CLR 1 at 17, per McHugh J). He has been deprived of or has lost the chance to earn unimpaired by the accident-related injuries (Wade v Allsopp (1976) 10 ALR 353, at 358, per Stephen J). Again, a broad axe approach must be adopted and the award should be moderate.
Under this heading of damages, for the plaintiff it was submitted that allowance should also be made for the cost of future medical treatment which he will be required to receive, should there be aggravation to his back, neck and right knee, as contemplated by Mr Cohen. For the defendant, it was submitted that there is no evidence of any on-going medical treatment. For the likelihood of such treatment, however, I consider that a modest award should be made. Taking everything before me into account, allowing for contingencies (both favourable and unfavourable) and discounting 3% for the effects of inflation (Todorovic v Waller (1981) 150 CLR 402), the present value of the plaintiff’s future economic loss is assessed at $30,000.
For the provision to the plaintiff by his mother of significant gratuitous services of a more demanding nature than normally to be expected of a family member, I consider that the amount of $1,500 should be allowed (section 35A(1)(h)).
In summary, the plaintiff’s damages are assessed as follows:
Non-economic loss $18,600.00
Past economic loss (inclusive of interest) $26,000.00
Future economic loss (inclusive of medical and other treatment) $30,000.00
Gratuitous services $1,500.00
$76,100.00
Upon the assessment of responsibility for the accident which has here been made, the plaintiff is entitled to recover 30 per centum of that amount from the defendant, that is $22,830.00, in which amount judgment will be entered for the plaintiff against the defendant. Upon the question of costs, counsel shall be heard.

[2002] SADC 5

25 January 2002