Robert Mackey v Peter Stojanov and Government Insurance Office of New South Wales [1986] ACTSC 1 (3 February 1986)

SUPREME COURT OF THE ACT

ROBERT MACKEY v. PETER STOJANOV and GOVERNMENT INSURANCE OFFICE OF NEW SOUTH
WALES
S.C. No. 129 of 1980
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Negligence - Contributory negligence - assessment of damages - No question of principle involved.

HEARING

CANBERRA
3:2:1986

ORDER

There be judgment for the plaintiff against the defendant Government Insurance Office of New South Wales in the sum of $82,250.00.

DECISION

This is a claim for damages arising out of an accident which took place in the early hours of 13 November 1977. The plaintiff was driving his vehicle, a 1975 Alfetta 4-door sedan which he had but recently purchased, from Canberra in a general northerly direction along the Barton Highway (the Highway) towards Yass. Peter Stojanov was at the same time driving his motor vehicle, then insured against third party risks by the defendant Government Insurance Office of New South Wales, in a general southerly direction.

2. The two vehicles came into collision at a point which was, I am satisfied, within some 50 metres or so of the entrance from the Highway to a property known as "Kenilworth". The evidence did not establish beyond doubt the point on the Highway where the collision took place but I think that, more probably than not, it took place on the Yass or northern side of the gateway to "Kenilworth". A driveway led from the Highway to "Kenilworth". It is shown on the map, Exhibit B. The scale of the map is 1 in 50,000 and the driveway as shown appears therefore to be between 600 and 700 metres long.

3. I am satisfied that, at the relevant time, there was no other road or driveway which joined the Highway within one kilometre of the point of collision. I am satisfied also that there was no "Give Way" sign erected at the junction of the driveway and the Highway.

4. From about 8 p.m. to about midnight on the evening preceding the accident the plaintiff, on his own evidence, drank five small cans of ordinary beer. A friend of his, Simon Skinner, also drank some cans of beer. At about midnight the plaintiff decided to go to Yass to see a friend. Because of the lateness of the hour Simon Skinner was reluctant to go with him but decided to do so so that he could catch up with the plaintiff's doings over the past twelve months during which they had seen nothing or very little of each other.

5. Simon Skinner described the plaintiff's driving during the journey from Canberra to the point where the collision occurred as steady and smooth. He said that the plaintiff drove at about 100 kilometres an hour, the speed limit where posted, and that he was on his side of the road during the whole trip. Mr Skinner gave evidence also that at times during the journey he looked at the speedometer. He said he did this because it was the plaintiff's new car at the time, that he was young and did not have a car of his own and was just interested in the plaintiff's car. He said that he looked at the speedometer within 500 metres of the accident. He said that he did not have his eye constantly on the speedometer but glanced at it and at the other gauges in the car from time to time.

6. In cross-examination counsel for the defendant suggested to Mr Skinner that he was not in the plaintiff's car but in another car and that the plaintiff had no passenger in his car at the time of the accident. Senior Constable Richmond, called on behalf of the defendant, gave evidence, however, that he spoke to Simon Skinner, whom he described as "another injured party", at the scene of the accident. I have no doubt, therefore, that Mr Skinner was a passenger in the plaintiff's car and I have no reason to doubt the evidence he gave about the way the accident happened. Indeed, I considered him to be an impressive and truthful witness. On the other hand, I was quite unable to accept the evidence of Mr Stojanov and that of his wife as to what had happened.

7. Shortly before the accident Mr Skinner saw a single light approaching. It was approximately 200 metres away when he first saw it and seemed to be in the middle of the opposite lane, i.e., on its correct side of the Highway. The plaintiff dipped his headlights and the two vehicles continued to approach each other, each, in Mr Skinner's view, at approximately the same speed. It would follow, therefore, that they were approaching each other at a combined speed of something of the order of 200 kilometres per hour or 55.5 metres per second. Allowing for the general inaccuracy of estimates made in circumstances such as those which I am considering, it is nevertheless clear that a very short time was available during which the plaintiff might appreciate the fact that the oncoming vehicle was a motor car with its off headlight not burning and take such evasive action as was appropriate. Mr Skinner, who had his eye on the approaching vehicle all the time from the time he first noticed it, recognized after what he supposed were a couple of seconds that it was a car and not a cycle and raised his hand to say something to the plaintiff but the accident occurred immediately thereafter. He said that at the time of the accident the plaintiff's car was about one and a half to two feet from the left hand side of the road and that when the two vehicles collided there was an overlap of about 12-18 inches. That evidence which I accepted placed Mr Stojanov's vehicle well on its incorrect side of the road.

8. In its defence the defendant alleged that the accident was caused or contributed to by the plaintiff's negligence in that he -

(a) failed to keep any or any proper lookout;

(b) failed to maintain proper control of his
motor vehicle;

(c) drove at a speed excessive in the
circumstances;

(d) failed to stop, slow down or to swerve or in
any other way so to manage or control his
vehicle as to avoid the collision;

(e) failed to warn Mr Stojanov of the presence of
his motor vehicle on the roadway;

(f) drove on the incorrect side of the road; and

(g) drove while under the influence of
intoxicating liquor.

9. I am not satisfied that any of these defences is made out.

10. The plaintiff, who was rendered unconscious in the accident and has no recollection of its happening or of the moments preceding it, was therefore unable to give evidence as to the circumstances of the accident. However, Mr Skinner may be taken to have been in exactly the same position as was the plaintiff and it was only, as it seems to me, on his evidence, at the very last moment that he appreciated the problem posed by the oncoming vehicle. The problem would have been compounded by the plaintiff's dipping his headlights as he properly did. There is no evidence that he was not in proper control of his vehicle. The speed at which he was driving was at the limit applicable, certainly not inappropriate in ordinary circumstances or where the danger created by the oncoming vehicle with only its nearside headlight burning was unlikely to be appreciated until the very last instant.

11. The alleged failure to stop or to slow down or to swerve or otherwise manage or control the motor vehicle so as to avoid the collision is not, in my opinion, made out. The danger created by Mr Stojanov was, I am satisfied, not able to be appreciated until the very last moment at which time it would have been too late to do anything to avoid the collision. There was no duty cast upon the plaintiff in the circumstances to warn Mr Stojanov of his presence on the roadway since I am satisfied that he was driving correctly with his lights on. I am also satisfied that he did not drive on the incorrect side of the roadway. While I am satisfied that he had drunk some beer on the evening in question there is no credible evidence that his consumption had so affected his driving as to be a contributing factor to the accident.

12. In all the circumstances, I am satisfied that the accident was due to the negligence of Mr Stojanov and that the plaintiff did not contribute to his own damage. It follows, in the circumstances, that the defendant Government Insurance Office of New South Wales is liable to compensate the plaintiff for the damages which he suffered in the accident.

13. The plaintiff was seriously injured. He sustained what his treating orthopaedic surgeon, Dr Roebuck, described as a "nasty comminuted fracture of his right femur" and a fracture of his skull from which, apparently, cerebro-spinal fluid leaked for a time. His nose was broken, his face and tongue lacerated so that they required stitching and two of his upper teeth were damaged so that one required restoration and the other replacing. At the scene of the accident he appears to have stopped breathing and required mouth to mouth resuscitation.

14. Dr Robson, a neurosurgeon, treated the fractured skull conservatively. The leak stopped and he thought there was no need to see the plaintiff again.

15. The plaintiff's leg was first placed in traction and after his general condition became satisfactory, Dr Roebuck operated and inserted a Kuntscher nail through the fractured femur and encircled the separate comminuted fragments in place with wire.

16. For some period which was not identified the plaintiff was fed intravenously and thereafter on soft foods because he was unable to eat meat and food that required much chewing. He remained immobilised in bed for about two months after the surgery which Dr Roebuck had performed. During this period he suffered an infection but this cleared satisfactorily. The nail in his leg used cause him pain and discomfort. The stitches in his face, down the right hand side of his forehead, across his eyebrow and down the right hand side of his nose and across its bridge were taken out while he was in hospital. He continued to have breathing difficulty but this eventually resolved itself. When he got out of bed he was allowed on crutches for three or four days and then went home. The Kuntscher nail caused him difficulty, jabbing him, as he put it, quite frequently. He was given physiotherapy treatment beginning a week after he got out of hospital. He found the lifting of weights, necessary to strengthen his legs, very difficult, making his leg very sore. The physiotherapy continued twice a week until June 1978. He also received hydrotherapy treatment at Woden Valley Hospital twice a week until the end of May 1978.

17. The plaintiff, during his convalescence, was concerned that his injured leg had become noticeably shorter than the other. He had been riding a bicycle as part of his physiotherapy course. Apparently with a view to doing something about lessening the difference between the length of his legs, he did some extra riding at home, using his brother's cycle. Unfortunately he fell off and refractured the leg. He was confined to bed for a couple of days. The fall caused the Kuntscher nail to bend a little. Dr Roebuck advised him not to engage in weight-bearing on the leg for about a month and told him to use crutches. By the time he went back to work he was walking with the aid of a walking stick. When he went back to work at the Canberra Branch of the Commonwealth Savings Bank where before the accident he had been employed as a teller, he was offered the choice of continuing to act as a teller or employment as an enquiries clerk. He chose to continue as a teller because work as an enquiries clerk would have involved continual getting up and sitting down during the course of the day. This would have caused him difficulty. He preferred, therefore, his employment as a teller even though standing up all day made his leg extremely sore. Eventually he left the bank, partly because he was bored with the work and partly because his new employment, as a public servant, offered him physically more comfortable circumstances.

18. As a result of the accident his right leg is about 5cm shorter than the left. To prevent postural problems he has to wear a built-up shoe. He purchases annually a pair of shoes which may be built up and then has the building up carried out at a present cost of about $60.00 per year.

19. He has some continuing laxity of the ligaments of the right knee but this is unlikely to be significant in the long term although it may have some ill effects. Postural difficulty caused by the shortening of his right leg is in large measure compensated for by the built-up shoe. He used get pain in the lower back but this is no longer the case and I am satisfied that he is unlikely to suffer any serious disability because of lower back problems following the accident. He has some difficulty with his neck which becomes sore from time to time and while this does not appear to be serious it nevertheless has to be taken into account and is, I am satisfied, due to the accident. He has two scars on the forehead, one three centimetres long and another two centimetres long. He has a scar on the right side of the nose and there is a scar hidden within his right eyebrow. They constitute a minor cosmetic problem and he feels sensitive about them although people have remarked on how well they have healed. He has, in addition, scarring at the sight of the operation on his leg. He has an odd feeling in his hip from time to time but this apparently is of little residual significance. Three toes of his right foot are somewhat clawed and although the exact aetiology of this phenomenon is not clear I think it more probable than not that it is as a result of the injury sustained by the plaintiff in the accident.

20. Before the accident the plaintiff used play squash regularly on a weekly basis, Australian football and cricket. He had for some three years between 1974 and the beginning of the 1977 season not played football because he was involved in a band but took up football again in 1977, playing in an under 19 team. He is not now able to play football. He tried playing squash for a time but found it very frustrating. He is able to play indoor cricket although suffering with a little discomfort from his leg and his back. He is able to run with a built-up shoe but not nearly as fast as he could before. He stopped playing indoor cricket in 1983 and considers it would be difficult for him to start again because of discomfort in his back and neck.

21. The plaintiff alleges that he suffered from brain damage as a result of the accident. I am not satisfied on the balance of probabilities that he suffered physical brain damage but I think that he suffered a personality change with consequent damage to his mental capacity.

22. I am satisfied that before the accident he was a bright, highly intelligent young man who enjoyed his work, was capable of quick decisions, and was likely to gain promotion readily. I am satisfied too that he would more probably than not have moved from employment with the bank to another form or forms of employment. He was, for example, interested in becoming an air traffic controller but I am satisfied that the accident resulted in the destruction of his hopes of entering that field of employment.

23. A friend, Grantley Brown, whose evidence I accepted, described the plaintiff as having been before the accident "normal, happy-go-lucky, with a buoyant sort of personality who was good company". After the accident he found him to be "moody, of erratic behaviour, undergoing changes of mood for no apparent reason. Sometimes he was like what he had been before and at other times he was distinctly unhappy and moody. His conversation was faltering". By this Mr Brown meant that he would stop in mid sentence either at a loss for words or because, it would seem, he lost his train of thought or confidence in his ability to articulate something. He had not been like that before the accident. To Mr Brown the plaintiff appeared to be less tactful after the accident than before, particularly during periods of depression. I accept the plaintiff's evidence that his capacity to make quick decisions has lessened.

24. I accept the views expressed by Dr Knox, a psychiatrist whom the plaintiff consulted, except insofar as they postulate organic brain damage. I accept the conclusions of Messrs. Sutton and Petroni, clinical psychologists. I accept also that there is a reasonable possibility that with treatment some of the plaintiff's psychological disability might be relieved. I am satisfied that overall the plaintiff has suffered some loss of economic capacity as a result of his injury. I think on the balance of probabilities he will not achieve that level of earning which he would have achieved but for the accident having regard to his original basically high intelligence and to his personality which is attested to by Mr Brown and, although less convincingly, by Mr Balfour. I note that, although he is acting as a clerk, class 7, his substantive position is that of a base grade clerk and that the conditions of employment in the Department in which he has been working make insecure his continuing to act as a clerk, class 7.

25. It is difficult to quantify the measure of his loss of economic capacity in all the circumstances since he has suffered no wage loss since his return to work in 1978 but I think a moderate amount which will do justice to both sides is $25,000 which represents an average loss of $23.34 per week from the date of hearing to his 60th birthday.

26. As for general damages I take into account his continuing deformity. This must be considered to be a severe disability in a young man (the plaintiff was born on 4 June 1958). There is no suggestion that his life span has been shortened in any way so that he must live with the disabilities from which he suffers for a period of some 45-50 years, assuming a normal life span. I take into account his continuing depressed state, his loss of self-esteem, his scarring, the damage to his teeth, the pain he has suffered and a measure of continuing discomfort. I take into account the possibility of further knee and neck pain or discomfort. In all the circumstances I think an appropriate figure for general damages for pain and suffering and loss of enjoyment of life is $40,000. Out-of-pocket expenses are agreed at $10,300 and his nett loss of wages following the accident was $3,027 which I round to $3,000. For future psychological counselling I think I should allow a figure of $1,000 and for future cosmetic dental treatment the sum of $1,500. For the cost of building up shoes for the rest of his life I allow $1,450.

27. There will be judgment for the plaintiff for $82,250.00.