Sidney Graeme Terekia v Ian Richard-Evans [1986] ACTSC 11 (5 March 1986)

SUPREME COURT OF THE ACT

SIDNEY GRAEME TEREKIA v. IAN RICHARD-EVANS
S.C. No. 1248 of 1980
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - defendant swerves to incorrect side of road to avoid kangaroo and loses control of vehicle - collision with oncoming vehicle - no explanation from defendant for choosing that course - negligence established - contributory negligence not established.

Damages - damages for personal injury - multiple injuries - depression - grief for passenger killed in same collision - onus on defendant to separate injury - related factors from grief-related factors.

Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158

HEARING

CANBERRA
5:3:1986

ORDER

By consent judgment entered earlier this day in the sum of $200,000.00 set aside.

Judgment for the plaintiff in the sum of $165,000.00.

The defendant to pay the plaintiff's costs.

DECISION

The plaintiff sues for personal injuries received at about 3 a.m. on Sunday, 30 March 1980 in a motor vehicle collision on the Federal Highway within New South Wales a few kilometres north of the border with the Australian Capital Territory. No point was taken as to any conflict of laws. There was no issue that the plaintiff was the driver of a Volkswagen sedan travelling south and the defendant was the driver of a Ford Falcon sedan proceeding north. The plaintiff has no memory of the collision. He remembers driving from Sydney towards Canberra, leaving the Hume Highway and proceeding along the Federal Highway which he described as narrow and dark. The defendant was not called to give evidence. The evidence as to the collision came from Constable Moss, a member of the Scientific Investigation Section of the New South Wales Police Force, who was at the scene at about 4 a.m. and who took measurements and photographs. Evidence was also given in the plaintiff's case by Miss Ann Margaret Ryan, who was a passenger in the defendant's vehicle. There is little dispute on the evidence as it stands. The questions that fall to be determined have to be answered on inferences drawn from the evidence. The collision occurred on a straight stretch of the highway between two crests about a kilometre apart. The vehicles were found after impact in a position about 400 metres north of the southern crest (and 300 metres north of the intersection of the highway and Majura Lane) and 600 metres south of the northern crest. There is uninterrupted vision between the two crests. Miss Ryan said that she was sitting in the front seat of the vehicle together with the defendant and another passenger. They passed over the border line into New South Wales. They had been following a rather slow vehicle which turned off in front of them (presumably into Majura Lane) and on the very top of the crest a kangaroo jumped out in front of the car. She described the kangaroo as a large kangaroo and said that it was "in the middle of the road". The defendant swerved to the right and the vehicle slowed down considerably She said that the vehicle then proceeded on its wrong side of the road. She thought it was on the gravel because she could hear a difference in the sound of the tyres "like stones". The vehicle felt as though it was skidding and she felt the car get back on to the bitumen. She then noticed for the first time the lights of an oncoming vehicle and there was a very large bang. On the evidence the inference is clearly to be drawn that the lights of the oncoming vehicle were those of the Volkswagen being driven by the plaintiff. The evidence of Constable Moss corroborated much of what Miss Ryan had said. The Ford Falcon was found with severe damage mainly to the front offside portion facing north at an angle with the front nearside wheel over the centre line. The rest of the vehicle was entirely on the eastern side of the centre line, that is to say, on its incorrect side of the roadway. A few feet from the rear offside wheel was the dead body of a kangaroo. Kangaroo fur was found to be adhering to the front nearside bumper-bar. There were skid marks 11.9 metres in length leading up to the Ford Falcon. These skid marks were entirely on the eastern side of the roadway. A dead joey was found on the roadway about 30 metres south of the Falcon. The Volkswagen was found facing west entirely on the eastern side of the roadway with very severe and extensive damage across the whole of the front portion.

2. The bitumen surface of the roadway in the vicinity of the collision is 8.1 metres wide. There is a broken white line separating the two portions of the carriageway and on the extremity of the bitumen on either side of the carriageway is a continuous white line. Beyond the white line on either side there are gravel shoulders which, according to the photographs, appear to be in reasonable condition and are about two metres wide. The country on the western side of the road is open. There are large eucalyptus trees on the eastern side of the road about three or four metres from the gravel shoulders. There are no signs in the photographs of skid marks or disturbance in the gravel as far as can be ascertained and Constable Moss made no mention of any such marks or disturbances.

3. I think that there are some slight qualifications to be placed upon the evidence of Miss Ryan. Firstly, because of the absence of skid marks or disturbances in the gravel, I think it at least possible that what she took to be the noise of the tyres on the gravel was the noise of the tyres against the surface of the bitumen whilst the vehicle was skidding. Secondly, Miss Ryan did not see the oncoming lights until very shortly before the collision. I am prepared to infer that if the plaintiff's vehicle had been over the northern crest before or at the same time as the defendant's vehicle came over the southern crest, then the lights on the plaintiff's vehicle would have been visible to and noticed by Miss Ryan. She said she was sitting looking straight ahead and being a nervous passenger "liked to know that I was going to be travelling on the road". Although the plaintiff's vehicle travelled a further distance from the northern crest to the point of impact than the defendant's vehicle travelled from the southern crest, I think this is explicible by the defendant's reduction of speed (to the point of skidding) at the same time as his attempt to avoid the kangaroo. Furthermore, although Miss Ryan said that the kangaroo jumped out in front of the car, she did not say from which direction it had come nor did she say whether it continued to move after it first came into view. Accordingly, it is impossible to draw the conclusion that it would have been less prudent for the defendant to swerve to the left or indeed to proceed straight ahead in order to avoid the animal rather than to swerve to the right. As the animal was in the middle of the road and the impact was with the front nearside bumper-bar, as the evidence establishes, then it does seem that the impact occurred when the defendant's vehicle was already to a considerable extent on its incorrect side of the road. I am not satisfied that at the time the kangaroo came into the defendant's view the plaintiff's lights were already visible to the defendant and so I would not be prepared to find that he knew or should have known that he was diverging into the path of the oncoming plaintiff's vehicle. On the other hand, the defendant offers no explanation of being on the wrong side of the road when it appears that there was in all the circumstances at least an equally safe course open to him, namely to drive straight ahead or to swerve to the left in order to avoid the kangaroo. In crossing to the incorrect side of the roadway and at the same time failing to avoid collision with the kangaroo, the defendant put himself in the position where he was likely to lose control of his vehicle and allow it to be become a hazard to any other vehicle which was proceeding south on the highway. The defendant's vehicle, once it crossed the incorrect side of the road and when the driver ceased to have it fully under control, was a danger not only to any vehicle which might have been within the sight of the defendant, but any vehicle which might reasonably be expected to arrive at or near the point of impact prior to the defendant regaining control of his vehicle and driving it back to the correct side of the roadway. In these circumstances I am satisfied that the defendant failed to exercise reasonable care for the safety of other vehicles on the road.

4. The question of contributory negligence then falls to be considered. The onus is of course on the defendant to show that the plaintiff failed to take reasonable care for his own safety. I draw the inference that when the plaintiff came over the crest the defendant had already observed the kangaroo and was endeavouring to take evasive action. There is no evidence one way or the other as to whether the plaintiff's headlights were on high or low beam, but I do not think that this affects the situation. Even if his lights had been on high beam I do not think that the driver of the Volkswagen at the time when the Falcon came into view, that is when the two vehicles were several hundred metres or so apart, would have been in a position to observe that there was anything untoward in the passage of the defendant's vehicle. At such a distance the divergence of the defendant's vehicle would not have been so great as to provide any cause for alarm for the driver of the Volkswagen. Nor am I convinced that the driver of the Volkswagen would have been in a position to observe that the speed of the oncoming vehicle had been drastically reduced. In other words, I am not convinced that the plaintiff failed to keep a proper lookout at that stage. I have already stated my view about the relevant speeds of the two vehicles. The question remains whether, when the plaintiff was in a position when he saw or ought to have seen that the defendant's vehicle was on the wrong side of the road and proceeding towards him, he should have taken some evasive action by swerving right or left. Again I am not convinced in the circumstances that to have taken one step rather than the other was the more reasonable choice. The plaintiff might reasonably have assumed that to stay on his own correct side of the road was the safer course because he could expect that the defendant would continue to endeavour to get back to the western side of the road, and indeed the angle of the defendant's vehicle would seem to indicate that that in fact was what the defendant was doing. It is possible that the plaintiff could have decided to swerve on to the gravel shoulder on the eastern side but to have failed to do so was not in all the circumstances, in my view, a failure to exercise reasonable care for his own safety. I find that the defendant has not established contributory negligence on the part of the plaintiff.

5. The plaintiff is entitled to a verdict with no reduction for contributory negligence. I turn now to the question of damages.

6. The plaintiff was born on 14 December 1960 at Gisborne, a small town near Auckland in New Zealand. He grew up in an extended family situation spending varying periods with different relatives both before and after he left school at the age of 16 or 17 years. He had completed fourth form at high school. He commenced work in a motel with a view to becoming an apprentice chef. That appears to have been in Wellington or possibly Auckland or possibly both. The plaintiff moved around the country staying with members of his large family and after a period of what appears to have been less than a year, he received an air ticket to Australia from someone he had known in New Zealand.

7. After his arrival in Australia the plaintiff stayed in Sydney for a period of time, some of it spent with his sister and about nine months spent with a man in Darlinghurst. During that time he did not seek employment. He then went to Victoria and obtained a position as an apprentice chef at the Sundowner Hotel. He was there for some months and then continued his apprenticeship at Ormond College at Melbourne University, again for a period of some months. That came to an end when he was in Sydney for a visit and met the doctor by whom he was invited to live and work as a chef, housekeeper and companion. The plaintiff was so engaged on the night of the accident and in fact was driving his companion employer to Canberra in the employer's car on the night of his injury. The doctor died soon after the collision as a result of his injuries.

8. At this point it is appropriate to break off and say something about the plaintiff and his personality generally. I made careful observation of him in the witness box and, in my view, he was in most respects a satisfactory and honest witness. On some aspects of the case, however, he was somewhat reluctant to give details, both in chief and whilst under cross-examination. In particular his reluctance related to details of his personal life. The reluctance is to some extent understandable, because some of the details sought turned out to be of no great importance. The plaintiff is a homosexual and no doubt his privacy in respect of personal relationships is to be respected as far as possible. On the other hand it is impossible to separate some matters relating to the plaintiff's personal life from matters usually regarded as directly related to damages and the aftermath of injury. The plaintiff impressed as a person of strong likes and dislikes as far as other persons are concerned and formed a strong antipathy to some of the doctors who have been involved in his case. Conversely, one gained the impression that some of the medical evidence is affected by a personal dislike of the plaintiff.

9. Apart from a reluctance to talk about his personal life, the plaintiff tended to play down the extent and seriousness of his injuries and their effect. This, I think, is consistent with his early defiance of the instruction and advice of those treating him, a subject to which I shall return. As Mr. McAlary QC remarked in his closing address, even the plaintiff's evidence-in-chief "had to be dragged out of him". The plaintiff's own evidence was corroborated to some extent by Mr. James Patrick Erikson, a member of a household at Box Hill in Victoria where the plaintiff has lived for considerable periods of time since his injury. His evidence was also partly corroborated by that of Mrs. Anna Maria Latin, who is the manager of the company that operates the restaurant at which the plaintiff is presently employed as chef.

10. The plaintiff lost consciousness in the collision with the defendant's vehicle and suffered retrograde amnesia to the extent previously mentioned. He was taken to the Calvary Hospital but transferred from there after a short period because of the seriousness of his head injury and admitted to the Royal Canberra Hospital in the early hours of the morning. Dr Coyle who treated him lists his injuries as follows:

1. Cerebral concussion, possibly associated with a basal

fracture of the skull.

2. Bilateral compound fractures of the distal shafts of
both femora.

3. Haemarthrosis of right knee, without significant
ligamentous or capsular damage.

4. Lacerations to scalp and lower lip requiring suturing.

5. Multiple abrasions.

6. Displaced fracture of left zygoma and possible fracture
of left mandibular condyle.

7. Crack fracture lateral end of right clavicle.

11. During the first few days the plaintiff was placed under close observation and both limbs were kept in traction. When he had recovered sufficiently the fractures were reduced. The more comminuted and distal fracture of the left femur was fixed by the use of a plate and multiple screws. The lower midshaft of the right femur was immobilised by a Kuntscher nail. On 5 April 1980 Dr Andrew Smith elevated the depressed fracture of the left maxilla. In about mid-April the plaintiff was transferred to Woden Valley Hospital for rehabilitation and hydrotherapy. During this period the plaintiff was depressed and irritable and found it difficult to cope with the restrictions that were placed upon him. He had become very depressed over the death of his friend and developed feelings of guilt in this respect. Whilst in the Woden Valley Hospital he disregarded instructions to refrain from weight-bearing and had to be submitted to a further operative process on 1 May 1980 when the plate and screws were removed from the left leg and replaced with a larger plate with a total of seventeen screws to hold it in position. Because of his loneliness and depression in Canberra the plaintiff asked whether he could be transferred to Sydney and at some stage was transferred to St. Vincent's Hospital. Until about that time his legs had been more or less immobilised in an arrangement of splints and springs. After a week in St. Vincent's Hospital the plaintiff was transferred to the South Sydney Hospital for the purpose of rehabilitation under the supervision of Dr Jones. That was on 17 May 1980. By that stage he was in a wheelchair. Despite or because of the plaintiff's failure to cope with his treatment at South Sydney Hospital he was discharged from there on about 12 September 1980. He expressed confidence in Dr Coyle and as he was returning to Canberra in any event for the purpose of giving evidence into the inquest of the death of his friend, he took the opportunity to present himself once again to Dr Coyle. Dr Coyle's version of this reunion was that the plaintiff turned up unexpectedly with all his worldly belongings, a one way air ticket from Sydney and otherwise destitute, having once again loosened the plate on the left femur and having consequently delayed union of the fracture. The plaintiff was once again admitted to the Royal Canberra Hospital and on 23 September 1980 the plate and screws were removed and the fracture fragments were fixed internally by a Kuntscher nail and a bone graft from the sacro-iliac area. The plaintiff was then confined to bed, virtually in custody, with his left leg in traction for several weeks. The right femoral fracture had fortunately united and when the plaintiff was able to be mobile, he was able to walk on his right leg. He was discharged some time before Christmas 1980 on crutches.

12. It appears that at this stage the plaintiff was suffering severely from depression and the chronology over the next six months or so is unclear. His evidence which, I accept, is that he was suffering low back pain, pains in the neck with sensitivity to touch (the exact nature of which is not determinable and for which he says he had acupuncture at some stage) severe headaches, fits of rage and depression. He took to heavy drinking which in conjunction with his medication caused nausea. The area of the bone graft was also painful particularly at night when it interferred with his sleeping. After he discarded the crutches, which appears to have been some time early in 1981, he noticed that he had a bad limp which he tried to correct with a certain type of shoe. Eventually his balance improved and after moving from Sydney to Mildura for a short time, he found a job as a cook at a hotel at Cann River in Eastern Gippsland. His employers there were quite protective. He was paid $190 flat per week for wages and received board and accommodation. The value of the latter he assessed at $90 per week. Whilst in this somewhat relaxed environment he began to recover from his depression, but he was still experiencing trouble with the nail in the left leg. Up to about this time he was being treated with Tryptanol, an anti-depressant medication.

13. The plaintiff returned for further assessment to Dr Coyle, and x-rays taken on 19 June 1981 showed that the fracture in the left leg had healed at last. By then the plaintiff was able to walk almost normally. However the Kuntscher nail appeared to be penetrating into the knee joint and it was removed surgically on 7 August 1981. This procedure was uneventful ("an unexpected and unprecedented experience") and the plaintiff was discharged from hospital a day or so later, fully weight-bearing on both legs and walking well, not to be seen again by Dr Coyle until 26 April 1985. In August 1981 Dr Coyle's view was that the plaintiff would be left with little long-term disability apart from some minor permanent loss of knee movement. It was anticipated that there might be aching at the fracture sites for some years with increased activity in change of weather, but Dr Coyle was firm that there would be no post-traumatic osteo-arthritis in the knees.

14. I turn now to trace the plaintiff's post-accident work history and will attempt to relate it to his medical and psychological condition as it developed over the period. The details of his employment and unemployment together with an assessment of the loss of earning capacity to date on a weekly basis is set out in a document which forms a schedule to these reasons for judgment. I find that the evidence establishes that the plaintiff was employed, or unemployed as the case may be, as shown in the schedule. I accept further that his earning capacity but for his injury was approximately $278.42 per week at the time of injury and from 1 July 1981 $280 per week, the net value of his earnings and board at the Cann River Hotel. The plaintiff does not claim a higher basis for lost earning capacity until periods of unemployment after June 1984 when he obtained a job at the Tavern Coffee Lounge in Melbourne at a net wage of $310 per week. From 20 May 1985 to the present date he has been able to earn up to $325 per week when employed as he is at present.

15. The plaintiff returned to Cann River and resumed employment there on 4 September 1981. He was continuing to receive medical treatment from doctors in Orbost and Bairnsdale, the closest large towns, for depression, headaches and loss of sleep. He became friendly with a restaurant proprietor in Bairnsdale and resigned his job at Cann River to take a job in the friend's restaurant. By that time, however, he said that he was a "nervous mess", down to six and a half stone in weight. He was unable to tolerate dealing with the customers in the restaurant and after about a month in that position he left and went to live at Box Hill with a group of people whom he had met early upon his arrival in Australia. At that stage he was in receipt of sickness benefits and, according to Mr. Erikson, the plaintiff was irritable, unco-operative, and reliant upon medication which produced side effects of drowsiness. With the encouragement of his house companions the plaintiff was then admitted to a psychiatric hospital at Kew. It is not clear how long he was confined to that institution; there is nothing in evidence from the hospital itself or any of the doctors. At the time of his admission it might be noted that according to Mr. Erikson the plaintiff was limping and needed a stick to get around. The nature of the plaintiff's condition and treatment whilst at the psychiatric institution is also unclear. Upon his discharge he continued with various medications for depression and the like and consulted with a Dr Imber and a Dr Lee. Again there is nothing from either of these practitioners before me.

16. Eventually he returned to Cann River where he tried to resume employment as previously but because of his irritability he lasted only three weeks and returned to Box Hill. The people in the house at Box Hill continued to be supportive and assisted him in eventually obtaining employment as a live-in cook at a motel by the name of The Zero Inn in a small town in western Victoria called Nhill. Although he was depressed and had pain particularly in his back and leg, he managed to cope with the employment for a period of about eight weeks. It is not quite clear why the plaintiff left this position. His evidence-in-chief was that "it was not a very busy little town" and so he went back to Melbourne again because as he said "I just wanted to be by myself". He said that he was still very depressed at that stage, not much help to himself and not much help to anybody else. He found a small motel room in St. Kilda where for a short time he paid a rent of $40 a week. Soon after, however, because of his efforts to beautify the place with pot plants and the like, he was asked to act as a sort of a caretaker, collecting rent in return for receiving free accommodation. He remained in that situation, gradually recovering from his depression, as I understand it, until he decided he wanted to take on more responsibility. He then came to Sydney staying temporarily with his sister and found a job soon afterwards at the Hyatt Kingsgate Hotel where he commenced duty on 21 July 1983. He was employed only part-time at that stage receiving $130 net per week. He found the job by virtue of his own initiative, simply applying at the personnel office at the hotel. In his evidence-in-chief he agreed with the question put to him by counsel that this was the first job that he had had in a big institution since the accident. However, the evidence suggests that he had had little experience in that sort of work and little tolerance for it even prior to his injury. In any event, according to the plaintiff himself, he was unable to cope with the formality and the pressure of work. He also discovered that Sydney was less to his liking than he had expected. There was, furthermore, evidence that the plaintiff's termination of employment at the Hyatt Kingsgate was associated with some action on the part of the police in relation to a flatmate who was a drug addict. I find, however, in the plaintiff's favour that the substantial reason for the termination of his employment at the Hyatt Kingsgate was his feeling that he could not cope with the pressure of work. He then remained out of employment for six weeks or so and on 25 October 1983 obtained a position with the Regent Restaurant in the city of Sydney on a part-time basis for which he received not much more than a pittance, $80 per week. The restaurant chain was in the process of opening new restaurants in the Sydney metropolitan area and the plaintiff was moved from the city concern to the Edgecliffe restaurant and finally a third restaurant at Double Bay. Again he complained that it was a high-pressure job with lots of deadlines and lots of people to contend with and I accept this as his basic reason for terminating his employment with that employer which was on about 27 January 1984. The plaintiff then returned to Melbourne and after an initial period of about six months unemployment he found a position at the Tavern Coffee Lounge, a more or less full-time position for which he was paid just over $300 per week. He said that he had applied for some positions unsuccessfully in the meantime after waiting a couple of months to "get Sydney out of my system and just to get my mind right again". The plaintiff's evidence was that he was still having difficulty with his legs at that stage and that on one occasion when he had been to visit Dr Imber he was having difficulty walking and getting to work on time. The management was unsympathetic to his problem and he terminated his employment at the Tavern Coffee Lounge. By that stage the plaintiff had moved to a flat at St. Kilda where he has been living for the past eighteen months with a friend. The plaintiff said that he continued to have problems in his back and legs over the ensuing six months or so during which time he was seeing Dr Imber, although in general he was trying to avoid doctors as much as possible. He then obtained a position at a hotel restaurant in North Melbourne where he worked for about two months from the end of May 1985 to the middle of July 1985 on a wage of about $325 per week. Again it would appear that he was in more or less full-time employment, but the situation of the restaurant was such that he had to be constantly climbing stairs and again he resigned. In about the middle of September 1985 he found a position with his present employer originally at the Mariner Restaurant and then at the Beachcomber Restaurant which is nearby. He remains employed there at the present time. He works as the chef in the kitchen with a staff ranging from three to seven persons depending upon demand. His hours are from four or five o'clock in the afternoon till about sometime between nine and eleven in the evening from Tuesday until Saturday each week. The plaintiff has declined to work lunch times because of the extra physical and personal demands. Mrs. Latin, his employer, noticed that the plaintiff becomes upset and unable to cope very well when the restaurant is busy particularly on Friday and Saturday nights. She also has noticed that the plaintiff at the end of a day's work walks in a peculiar shuffling manner. The plaintiff is well regarded by his employer. His job is not threatened by the fact that he declined to cook at lunch time. He is now a specialist in seafood cuisine.

17. The considerable gap in time between the accident and the hearing has been of benefit at least to the Court to the extent that the plaintiff has now stabilized in his medical, employment and personal situation and, the assessment of damages is somewhat less difficult than it might have been six months or more ago.

18. The plaintiff's present complaints are that he has lower back pain irregularly as well as pain in the neck associated with bad headaches. He still sleeps badly, sometimes not getting to sleep until 6 or 7 o'clock in the morning. His headaches and lack of sleep lead to irritability, but that does not seem to be associated any longer with the post-accident depression. He has come to terms with the death of his friend in the collision. He has formed a more or less stable relationship with the friend with whom he has now lived for eighteen months or more. As far as the legs are concerned, the plaintiff said that he has not had any problems with them for a couple of months.

19. I turn now to the medical evidence concerned with the plaintiff's recent and present condition.

20. Dr Coyle re-examined the plaintiff on 29 April 1985 at which stage the plaintiff had no significant complaints in relation to his legs except for aches and pains in the left leg in cold weather of nuisance value only. The plaintiff was also complaining of intermittent low back pain which upon examination was found to be consistent with a secondary or compensatory lumbar scoliosis which itself was due to the shortening of the left thigh by 1.5 cms. as contrasted with the right. Rotation and movement of knees and hips were normal and quadriceps tone and bulk were said to be excellent. Dr Coyle noted that the plaintiff still bears the scarring from the bone transplant, and this supports the plaintiff's claim that he is embarrassed to wear shorts or a swimming costume. Dr Coyle expressed the firm view that the plaintiff was unlikely to develop any post-traumatic arthritic change in any joint.

21. Dr Andrew Brook, a rheumatologist, saw the plaintiff on 27 September 1985. The plaintiff complained to him in some detail of low back pain in more dramatic terms than those described by Dr Coyle. He told Dr Brook that the pain causes him to freeze up momentarily and often settles within a few minutes. The plaintiff stated to Dr Brook that the unpredictability and severity of such attacks are a considerable source of distress to him. However, the plaintiff himself stated at the hearing that that type of pain seemed no longer to be a problem and what he experiences at the present time is more in the nature of a dull ache. The plaintiff's complaints to Dr Brook of pain in the knee was also more detailed than what he had to say in evidence but is consistent with the general picture that until very recently pain in the knee, back of the thigh and hip made it impossible for him to stand any length of time without considerable discomfort and made it particularly difficult for him to walk upstairs. Dr Brook's observations contrasted with those of Mrs. Latin. He thought that the plaintiff walked with virtually no limp and could maintain a substantial amount of activity. The findings of Dr Brook on examination were very similar to those of Dr Coyle. Dr Brook's conclusion was that, whilst he would not discount further mild improvement, it seems unlikely that the plaintiff is going to become entirely free of left leg pain or entirely free of attacks of pain in the lower back and his variable disability could be expected to continue and be permanent.

22. Dr William Knox, a psychiatrist, saw the plaintiff on 25 October 1985 and had before him a number of reports including those of the Health Commission of Victoria, the William Street Clinic and the Rehabilitation Centre in Zetland which were not before the Court. Dr Knox's report is useful for the detailed history obtained from the plaintiff, but it is clear that the plaintiff was not at the time of the examination suffering from any substantial psychiatric disturbance. It seems that Dr Knox was not greatly impressed by the plaintiff whom he found to be unco-operative and resentful. Dr Knox concluded that upon the history of being unable to work regularly during the last five years on account of ongoing emotional disturbance and pain and accepting that the plaintiff was frequently moody and irritable, these were nevertheless traits that did exist prior to the injury, and that the plaintiff was not frequently frustrated before the injury because of his ability to lead an active work and social life. Generally, due to immaturity, the plaintiff has very poor tolerance for dealing with difficulties in his life as they crop up. This led Dr Knox to the conclusion that the accident in 1980 precipitated "considerable psychiatric compensation", and that whilst the plaintiff had coped reasonably adequately prior to that time, the ongoing experience of pain and emotional disturbance caused considerable insecurity, moodiness and irritability as well as considerable damage to the plaintiff's "rather narcissistic self image". Whilst the accident acted to trigger the difficulty in recent years, Dr Knox's view was that the traits presently shown represent features inherent in his personality and that he is likely to continue with frequent emotional disturbance on account of low level personality disorder complicated by ongoing experience of pain and some actual physical disability. Dr Knox's view, I think, largely accords with my own observations and assessment of the plaintiff in the light of the other evidence and accords also, I think, with good sense.

23. There is no question that an important part of the plaintiff's claim is the depressive condition which followed the injury and for which indeed he even received treatment at a psychiatric hospital in Victoria in 1981. There is little difficulty in coming to the conclusion that this depressive condition taken in conjunction with his physical injuries rendered him unfit for employment for considerable periods of time or alternatively rendered him unfit for all but spasmodic employment over a considerable period of time. It was submitted by Mr. Hamilton QC on behalf of the defendant that the defendant should not be held responsible for this depressive condition or alternatively not be held responsible for it entirely in that the evidence clearly established that the plaintiff was depressed not only by reason of his injuries and his own personal situation but by reason of the death of his friend. Insofar as the depression consisted of or was exacerbated by grief for the friend's death, so the submission went, it was not a condition for which the defendant was responsible in damages. There is some force in this submission. Mere grief, I apprehend, would not in itself be compensable, nor would the depression which flowed from the guilt which the plaintiff for some time felt for having caused or contributed to the death were there not special other factors to be considered. The plaintiff himself was injured in the same event as that which caused the death of the friend, and I think that is the decisive factor. It was the defendant's act which caused the death of the friend as well as causing the plaintiff's injury. The plaintiff is a particularly susceptible person as far as emotional setbacks are concerned and the defendant must of course take the plaintiff as found. Furthermore there is a principle where if the defendant contributes to a condition that would have existed at least in part without the defendant's wrong doing, then it is for the defendant to do the sorting out and show to the satisfaction of the Court what consequences are due to his wrong doing and what consequences are not (Watts v. Rake [1960] HCA 58; (1960) 108 CLR 158), and in this case the defendant has not done the unravelling. It is simply impossible to separate out of the plaintiff's depressive condition that part which is due to grief and guilt on the one hand and that part which is a reaction to his own injuries and his own situation on the other hand.

24. Dr Knox mentioned that the plaintiff is sensitive about the need to wear a dental plate. Dr Coyle made no mention of this aspect, and the plaintiff did not mention it in his evidence. Nevertheless, evidence was given by Mr. Colin Rickard, a dental surgeon, following an examination by him on 27 September 1985 of dental damage alleged to be sustained by the plaintiff in his injuries. The examination revealed that five teeth were missing, all evidently as a result of the accident. This was not disputed on the part of the defendant. Four front teeth have been replaced by a partial removable denture and a small gold bridge has been made to replace the lower right first molar which was apparently also lost in the accident. The lower right canine tooth has been restored by the use of a crown, and whilst there is no direct evidence that this was necessitated by injury, Mr. Rickard's assumption that that tooth was damaged was not challenged by or on behalf of the defendant in cross-examination. The necessity of wearing a partial denture means that the plaintiff is also more susceptible to dental decay than he would otherwise have been and the general damages will take this factor into account. There is no question that the plaintiff has done his best to look after his teeth in the circumstances since the injury. There is a possibility that malocclusion might occur at some time in the future, but it has caused no problem to date and the possibility is so remote that I think it should be discounted completely. The plaintiff expressed to Mr. Rickard an interest in having the partial denture replaced by fixed bridge work. Mr. Rickard's view is that such a procedure would be quite difficult and that the services of a "truly competent practitioner experienced in advanced restorative techniques" would be required. In my view then, as far as the future is concerned, it is not reasonable to include in the damages a sum for fixed bridge work. On the other hand, the plaintiff is entitled to have included in the damages a component to compensate him for the inconvenience, discomfort and embarrassment of the denture, together with some deleterious effects contributing to general decay in the adjacent teeth. He is also entitled to a further sum for replacing the partial denture which at present costs would be $500 every ten years. He would also need to replace the crown on the lower canine tooth once only at an estimated cost of $500.

25. My findings may be summarised as follows. The plaintiff suffered extremely serious and multiple injuries from which he had made a good physical recovery. However, the left leg remains permanently shorter than the right by a centimetre or so. This can be corrected by footwear but is, nevertheless, likely to give rise to some pain in the lower back from time to time and indefinitely in the future. It is not sufficiently serious upon the medical evidence to lead to osteo-arthritis. The fractures in the legs have healed to the extent that I am not satisfied that after a period of another three years or so the plaintiff will continue to feel any disabling symptoms in those limbs. As well as the physical injuries, however, the plaintiff sustained serious psychological consequences of a depressive nature which have only recently begun to resolve themselves. I expect that they will be resolved for practical purposes at the end of another three years or so. The plaintiff is reasonably fit for his present employment and again within a period of three years or so will, in my view, have reached the situation where he will be fit for the range, frequency and intensity of employment duties that he would have sought to pursue even if he had not been injured. He has had severe and disabling headaches in the past, these continue to some extent at present and will continue for some time into the future, but I am not convinced that these are any longer of physical origin. The plaintiff also suffers the inconvenience and embarrassment of surgical scars and the dental replacement to which I have referred.

26. It is necessary to relate the plaintiff's disability since the injury to his loss of earning capacity and to express the result in monetary terms. This is a difficult task because it is clear that up until the time he commenced employment with the Cann River Hotel at the beginning of July 1981, he was totally incapacitated. At the other end of the scale, he has for some time been capable of earning at much his present rate of income. Doing the best I can on the evidence, it seems to me probable that his depressive state showed positive signs of substantial resolution somewhere in the early months of 1984 and particularly by June when he did in fact commence at the Tavern Coffee Lounge. I think that he should be awarded his total loss of earnings as set out in the schedule to the judgment from the time of injury to 27 January 1984. I think that the total loss of earnings between January and June 1984 should be reduced by one-third having regard to what I believe to be the improvement in his condition during that time. I think that his condition should be regarded as continually resolving since June 1984 and that he should be awarded one half of the total loss of earnings during the periods he was unemployed from the beginning of October 1984 to late May 1985 and for the two months after mid-July 1985. Loss of earning capacity in the past then is as set out in the schedule and amounts to $55,036.32.

27. As far as future loss of earning capacity is concerned, I am not satisfied that, even if the plaintiff had not been injured, he would be following a regular course of employment for five or more days a week, eight hours or more per day, cooking lunches as well as dinners and otherwise leading the rather routine life that most employees have to lead. It is quite evident to me from the evidence, and if I may say so sitting as a tribunal of fact as a matter of general knowledge, that people engaged in the profession of chef and in the restaurant trade or industry generally are more prone to move from job to job and work irregular hours to suit their tastes and convenience than are employees in more routine walks of life. Nevertheless, I am quite convinced that for the next three years or so the plaintiff will not work the hours that one might have expected had he not been injured. It is impossible to be mathematically precise on this aspect but I would assess his present and continuing loss of earning capacity to be $100 net per week over the next three years and thereafter to be incapable of assessment on a periodic basis. For the three year period and applying the 3% discount table, the sum of $15,000 is allowed and for the indefinite period into the future thereafter I add the sum of $10,000 making a total of $35,000 for loss of future earning capacity. In the circumstances I do not think it appropriate to lend a cloak of mathematical accuracy to that sum by reducing it for vicissitudes.

28. Out-of-pocket expenses are agreed at $32,714. Future dental expenses I assess at $2,000, allowing a discount for present payment. General damages for pain and suffering and loss of enjoyment of life, I assess at $40,000 and apportion $30,000 as to the past for the purpose of interest. Interest will be awarded on that sum and on the sum awarded for past loss of earning capacity calculated at 14% per annum and the result reduced by half as a rule of thumb taking into account that the loss did not all occur at the commencement of the period in question. That interest is calculated at approximately $35,200. I have considered whether the interest should be further reduced because of the lengthy period between the time of injury and the date of hearing but am not aware of any factors that show good cause for any such reduction.

29. In summary then the plaintiff's damages are as follows:

Out-of-pocket expenses $32,714.00

Past loss of earning capacity $55,036.32

Future loss of earning capacity $35,000.00

Future dental expenses $ 2,000.00

General damages $40,000.00
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Total: $164,750.32

30. On an overall assessment of the global sum it seems to me to be appropriate to round the damages out at $165,000 and to round the interest out at $35,000. The plaintiff is to have judgment for $200,000. The defendant is to pay the plaintiff's costs.