Scott Pettersson v Beatrix Eleanor Bayes [1986] ACTSC 12 (6 March 1986)

SUPREME COURT OF THE ACT

SCOTT PETTERSSON v. BEATRIX ELEANOR BAYES
S.C. No. 606 of 1984
Negligence

COURT

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

CATCHWORDS

Negligence - failure to give way to vehicle on right - no matter of principle.

Damages for personal injury - no matter of principle.

HEARING

CANBERRA
6:3:1986

ORDER

There will be judgment for the plaintiff in the sum of $14,765.50, but the defendant is to be given credit for $217.50 already paid.

The defendant pay the plaintiff's costs.

DECISION

The plaintiff sues for personal injuries received by him in a motor vehicle collision on 13 December 1981. The writ was issued on 9 July 1984. Notice of trial was given and a certificate of readiness filed on 9 May 1985. The hearing took place on 11 and 12 December 1985.

2. Although liability was in dispute, the defendant called no evidence on this aspect. The collision occurred at about 1 a.m. when the plaintiff was riding his motorcycle north in Kitchener Street, Garran approaching the intersection with Lynch Street which formed a T intersection on his left. He was travelling at a speed of about 60-70 km/h. His headlight was working and was on high beam. He saw a vehicle in Lynch Street approach the intersection and it appeared to him to stop or almost stop somewhere in line with the prolongation of the kerb line of Kitchener Street. The plaintiff does not recall whether or not he slowed down on observing the other vehicle. As he continued along Kitchener Street the vehicle on his left pulled out in front of him and his motorcycle struck the vehicle. He was catapulted over the top of the vehicle and struck the ground some distance on the far side, landing on his knees and striking his right forearm and shoulder. He was wearing a crash helmet at the time. His belief was that he retained consciousness, but he was dazed at least.

3. Constable Spencer arrived at the scene some short time later and saw the plaintiff's motorcycle lying in the intersection and another vehicle, a Mazda Utility, also in the intersection facing east with recent damage to its front righthand side. In a statement to Senior Constable Wheeler, who also attended the scene, the defendant admitted that she was the driver of the utility truck and had been travelling east in Lynch Street. She said that she slowed down to turn right, then started to turn right and when in the intersection she noticed the headlight of an approaching vehicle on her righthand side. She accelerated but was unable to avoid collision.

4. I have very little difficulty in reaching a conclusion on the balance of probabilities that the defendant was negligent in failing to keep a proper lookout and failing to give way to a vehicle on the right when she and the other vehicle approached each other at an intersection. I am not satisfied that there was any contributory negligence on the part of the plaintiff. He was not absolved from the duty of taking reasonable care for his own safety simply because the defendant was under a duty to give way to him at the intersection, but in the circumstances it was not unreasonable for him to assume that the defendant having slowed down on approaching the intersection would either stop or allow him sufficient time to pass in front of her. The defendant fails on the issue of contributory negligence.

5. I turn now to damages. The plaintiff was born on 1 October 1957 in Newcastle. His family moved to Canberra when he was a boy and he was educated to the higher school certificate level in the Territory. He was active in sports whilst a school boy and at that stage represented the Australian Capital Territory in rugby union, Australian rules, swimming, cricket and basket-ball. After leaving school he continued to play Australian rules football at first grade competition level and cricket at second grade competition level. His employment was firstly as a postman. He sought to improve himself by going back to the technical college in order to sit again for the higher school certificate in order to go into a higher grade, but he was unsuccessful in this regard. He then took up employment as a casual barman for about a year and a half, then as an investigator for a firm of private investigators concerned with insurance claims and the like. Then after reaching the age of 22 years he signed on for three years in the Army. After his initial training he was posted to the First Field Regiment at Wakool near Brisbane and in fact was on leave from that posting when he met with his injury. Prior to the injury he represented his regiment in squash and basket-ball.

6. Immediately subsequent to his injury the plaintiff was admitted to the Woden Valley Hospital and was discharged after about four hours. He returned a day or so later for the purpose of x-rays. He remained in Canberra over the next four or five weeks, classified by the military authorities as having returned to duties, but being under medical treatment. In fact he did not carry out any duties during this period. He was kept under observation by medical officers at the Joint Services Health Centre and was eventually given a clearance to return to his duties in Brisbane. Upon returning to Brisbane he was posted to a course in the Army Intelligence Corps and subsequently in March 1982 was transferred to Canberra to a position in military intelligence. This had nothing to do with the accident. He served in that position and in a subsequent similar position until January 1985. Both those positions were in the plaintiff's words "desk bound without physical criteria required". There is no claim that the plaintiff's injuries have prevented him from carrying out his military duties, and he has suffered no loss of pay. He was promoted to the rank of Corporal in mid-1983. He has signed on for another period of three years which expires in the middle of 1986. Nevertheless, the plaintiff has claimed some restriction of mobility and symptoms of pain in the area of his injuries and it is undisputed that, apart from a period of one or two weeks, he has been regarded by the military authorities as on some form of a medical restriction. That restriction was imposed upon him at the begining of 1985 when he was posted to Brisbane. There is no evidence from military sources as to the exact nature or effect of the medical restriction imposed upon the plaintiff. I shall return to this aspect of the case in a moment.

7. None of the contemporary medical records were before the Court nor was there anything from Army medical records. The earliest medical material in the case is a report from Dr. I.L. Ferguson, a general practitioner in Canberra, who examined the plaintiff at the request of his solicitor on 17 August 1982. The history given to Dr Ferguson and supported to some extent by the evidence is that for seven days after the injury the plaintiff experienced moderately severe pain in his right knee on weight-bearing, the knee felt sore on movement and movement of the knee was restricted. The pain in the right knee resolved and ceased for practical purposes two weeks after the injury, but the knee was stiff for about a month. Both knees continued to be sore on running and frequently made cracking noises upon movement. The plaintiff was unable to sit cross-legged for more than five minutes because of soreness and stiffness in the knees which resolved upon walking or straightening the legs. On occasions the knees had given way. The plaintiff also complained at that stage of pain in the front of the left shoulder for some 36 hours after the accident and for about three weeks thereafter. Occasionally since then the plaintiff had suffered pain upon fast shoulder movement and more sustained pain when pulling, exercising, climbing or when lying on the left side with his head supported by his left hand for an extended period of time. He also complained to Dr Ferguson of pain in the right wrist which resolved after two and a half weeks. Findings on examination were consistent with the plaintiff's complaints. Dr Ferguson drew some rather pessimistic conclusions as to the seriousness of the plaintiff's injuries and suggested a course of treatment. However he did not see the plaintiff again until 10 October 1985 again at the request of the plaintiff's solicitors. On this occasion the plaintiff complained to him of a small lump on the upper part of his left calf with a prominent vein at the inner side of the thigh with pain in the lump on prolonged standing. Upon examination Dr Ferguson found that there was varicosity of the long saphenous vein on the left thigh and on "the short saphenous venus (sic.) system" at the back of his left leg. Dr Ferguson concluded that the varicosity of the left leg was consistent with blockage in the vein due to a clot forming as a result of the injury to the thigh in the accident. Such thrombosis would have dissolved naturally over a period of six to twelve months but would leave the vein, as I understand it, at permanent risk of further thrombosis. Dr Ferguson was not called to give evidence. Counsel for the plaintiff did not make any reference to this aspect at any stage and the only relevant matter in the particulars of injury and disability furnished according to the practice is an allegation of "varicose veins to the lower left leg". Insofar as this conclusion of a further threat of thrombosis is not supported by any sworn medical evidence or any other medical report, I am not satisfied on the balance of probabilities that it should form any component in the award of damages. Similarly, I am not persuaded that the findings made by Dr Ferguson at his initial examination of the plaintiff, namely that the plaintiff had suffered from traumatic arthritis of his right wrist and in both knees, chronic sprain of his left shoulder and possible aggravation of latent gout, should be accepted.

8. The plaintiff was examined, apparently on behalf of the defendant, by Dr John Corry, a specialist in rehabilitative medicine, on 13 May 1983. The complaints at that stage were as follows:

1. Loss of muscle bulk and weakness of the

left thigh with a small depression.

2. Stiffness of both knees with discomfort
and swelling upon running with occasional
clicking and giving way.

3. Stiffness and clicking in the right wrist
and occasional pain in the left shoulder
particularly upon reaching backwards.

9. Upon examination Dr Corry found the plaintiff to be a fit looking man with normal gait and posture with a full range of movement in all joints of the arms despite a complaint of some discomfort at the extremes of external rotation of the left shoulder. The right wrist could be moved vigorously in order to demonstrate the complaint of cracking noises. Dr Corry noted a wasting of the muscle of the left thigh to the extent of two centimetres associated with a small area of depression which Dr Corry ascribed to the necrosis of fat tissue following bruising. Dr Corry was able to observe crepitus upon movement of both knee joints. Dr Corry's view at that stage was that the plaintiff had fully recovered except for the depression in the left thigh (which was of no functional significance) with mild osteochondritis in both knees probably resulting from trauma. Because of some wasting in the musculature of the left thigh, Dr Corry recommended specific exercises and anticipated no long-term disability. Upon up-to-date examination on 1 March 1985 Dr Corry reported very little change in the situation over the intermediate years. The plaintiff specifically stated that he was able to carry out the physical training programme normally required in the Army, but had not been tested in any of the more active field duties. The plaintiff was doing a lot of swimming and jogging, although he noticed some aching after a four to five kilometre run. Dr Corry further noted that the quadriceps muscle in the left leg had increased with no practical difference between it and the right. He also noted early varicose veins in the top of the left lower leg which the plaintiff stated had developed recently, but Dr Corry did not express any view upon the relationship between the varicosity and the injury. There was altered skin sensation and circulation in the left thigh but otherwise full range of pain free movement in the left shoulder and right wrist.

10. The plaintiff was also examined by Dr Collins Greaves, an orthopaedic surgeon on 14 November 1983. The history and complaints were very similar to those stated to other doctors. Dr Greaves had an x-ray done which showed no abnormality in the right wrist or in either knee. The findings of abnormality on physical examination were minimal and Dr Greaves saw no sign of any appreciable disability of either knee joint. In the left thigh the muscle depression already referred to was, according to Dr Greaves, a result of the direct blow to the area which had caused a little loss of muscle function in the thigh with altered sensation in the skin. Dr Greaves felt that awareness of alteration in the sensation would diminish while muscle depression will persist. I myself have observed the area concerned and it is clear that the depression does indeed persist and is easily visible. It is of no serious consequence from a cosmetic aspect. Dr Greaves found no sign of any residual disability in the right forearm and/or wrist and expected that any residual ache or discomfort in the left shoulder could be expected to resolve without further treatment.

11. The medical reports of Dr Greaves and Dr Corry are entirely consistent with each other. The more recent examination by Dr Corry on 1 March 1985, I think, provides an uncontroverted basis for assessing the plaintiff's condition which has remained more or less stable since the middle of 1983 and which can be expected to resolve for practical purposes almost completely over some unpredictable time in the near future. There is occasional pain in the left shoulder, with aching in the knee joints but only after prolonged and severe use. There is an altered sensation associated with clicking in the right wrist but I am not satisfied that that gives rise to any disabling or painful condition. The alteration of sensation in the left thigh likewise gives rise to no disability, although the damages will include a moderate component for the cosmetic aspects.

12. The evidence of the plaintiff in chief as to his present symptoms and disabilities was rather sparse and was developed in cross-examination. It leads to a finding on my part that over the last twelve months the plaintiff's condition has improved to the extent that he does not have any pain in his legs except after quite strenuous activity such as a four kilometre forced route march. Nor does he have any pain in his shoulder or wrist except after heavy and strenuous activity such as trying to haul himself along a ten metre rope. The plaintiff on one occasion tried to complete an obstacle course of this nature and was unable to do so. He has, however, continued to be active in gym work and swims frequently. He plays lawn bowls and has indeed in recent times represented the Territory in this sport. The limitation on the plaintiff's enjoyment of life really arises from an apprehension on his part that if he over-extends himself he will feel pain or will not be able to successfully complete what he has set out to do. In particular he fears that his army career will be jeopardized by his condition. No evidence was called from military sources on this aspect except that an extract was tendered from a document entitled "A Commander's Guide for the Preparation of Annual Reports on Senior Soldiers" in which there is a paragraph relating to physical fitness. In part this paragraph states "Weight and physical fitness are mandatory considerations for promotion. . . . . It should be noted that it is mandatory to include the results of the soldier's PTT. A soldier gaining a 'C' pass should be ticked 'Displays an acceptable level of physical fitness'. Only those soldiers achieving 'A' passes should be marked as displaying a high level of physical fitness. . . . . Soldiers may be cleared for promotion, but will not be promoted if they are assessed as overweight or display an unacceptable level of physical fitness. Soldiers who have disabilities because of injuries sustained on active service or on duty will be given special consideration and attention should be drawn to this in the remarks column."

13. The plaintiff stated in his evidence, and it was not objected to, that Army policy is to require fitness to a standard known as FE (fit everywhere) for the purpose of overseas field postings. The plaintiff fears that he could not achieve the FE standard, although he has not been tested for it. He also fears that he could not achieve the standard known as BE (battle efficiency), which is a lower standard than FE. Again he has not been tested to this standard officially, but he has tested himself privately and states that he could not complete the obstacle course which I have already referred to.

14. From the time the plaintiff returned to military duties in Brisbane about a month after the injury until some time early in 1985, no restrictions were placed upon him within the military system in relation to his fitness. Because of the nature of his duties in the intelligence corps he has not been required to carry out the same range of physical training as other soldiers. It was, however, following the route march in February that some restriction was placed upon him, the exact nature of which is unclear. The plaintiff himself said that he was to be examined by a military medical officer who is an orthopaedic surgeon, such examination being scheduled to take place in February 1986. He said that he expected to be downgraded, but no I am not prepared to accept the plaintiff's own assessment on this aspect. The plaintiff himself indicated that he was happy to continue his military career in the intelligence corps.

15. In summary, I do not think that the plaintiff's injuries can be shown to have materially affected his military career. I am not convinced on the balance of probabilities that he would have achieved promotion either in the artillery (where he was posted at the time of injury) or in the intelligence corps beyond what is still open to him. I accept that it is probable that he is precluded from being posted back into the artillery. I do not accept that it is probable that he is precluded from an overseas posting in the intelligence corps. However, I do accept that, having regard to the restriction currently placed upon him, there is always the contingency that in the future the military authorities may, correctly or incorrectly from a medical point of view, deem him unfit for some form of service. As far as the future is concerned a plaintiff is entitled to be compensated for adverse contingencies brought about by the defendant's wrong doing, difficult as it may be to assess the monetary value of such contingencies. I accept that there is a certain range of physical activity which the plaintiff reasonably would not seek to follow at the present time, but that is at the extreme range of physical demand. The plaintiff himself contended that but for the injury he would probably be representing the Australian Capital Territory in Australian Rules, but I am unable to make such a finding. He had not played competition in Australian Rules for some three years prior to his injury. I do not think that the plaintiff was exaggerating his symptons and disability in the sense that he was seeking to mislead the Court, but it should be observed that he was meticulous, once given the opportunity in cross-examination, in relating every detail of how his injuries affect him at the present time and may affect him in the future.

16. I take into account that the plaintiff was at all times prior to his injury ambitious, industrious and concerned to maintain a high level of physical fitness. The extent to which his self-image has been affected by these injuries, I think entitles him to damages which will be greater than in the case of a person with lower self-esteem.

17. I assess general damages at $12,000 as to which I apportion $8,000 for the past. Out-of-pocket expenses are agreed at $365.50 of which $217.50 has already been paid by the defendant. There was no loss of pay in the past and loss of earning capacity in the future being confined to a contingency only is reflected in his case in general damages. Interest is claimed and will be awarded on $8,148 at a rate of 14% reduced by one half to account for the fact that the loss was not all sustained at the commencement of the period. Such interest amounts to $2,400.00 and will be added to the damages. The plaintiff is to have judgment for $14,765.50, but the defendant is to be given credit for $217.50 already paid. The defendant is to pay the plaintiff's costs.