Mario Pangallo v Kevin Bolton [1986] ACTSC 27 (29 April 1986)

SUPREME COURT OF THE ACT

MARIO PANGALLO v. KEVIN BOLTON
S.C. No. 1485 of 1982
Damages

COURT

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

CATCHWORDS

Damages - Contributory negligence - No new question of principle involved.

HEARING

CANBERRA
29:4:1986

ORDER

THE COURT ORDERS THAT there be judgment for the plaintiff in the sum of $263,800.00.

DECISION

This is a claim for damages arising out of an accident which took place on 11 March 1978, a Saturday. On the evening of that day the plaintiff sustained serious injuries when a passenger in a car being driven by the defendant.

2. After working that afternoon the defendant, still in working clothes, went to the Ethos Hotel in the vicinity of 5.00 to 5.30 p.m. He gave evidence that between then and 7.00 or 7.30 p.m. when he left to go home to have a shower and a meal he drank some beer, five or six middies he supposed. Having changed and eaten he returned to the hotel at about 8.00 or 8.30 p.m. and stayed there until shortly after closing time. When he first resorted to the hotel on that day he met, not by arrangement, a number of team mates from a football team known as the "Canberra Gallopers". The plaintiff was the coach of that team while the defendant was its captain. The plaintiff went to the hotel some time about 8.30 to 9.00. When he arrived he saw the defendant and began to talk with him about the first game of the season which was to be played next day.

3. Between his arrival at the hotel and his departure from it in the company of the defendant the plaintiff drank no more than three, perhaps as few as two, middies of beer. The defendant gave evidence that at his second visit to the hotel he drank about the same as he had earlier, half a dozen or so middies he supposed. He said that he felt all right and thought he was all right despite the amount he had drunk.

4. On all the evidence including that of the investigating police officers I am satisfied that when the defendant left the hotel after closing time on that evening he was under the influence of liquor to the point where it was unsafe for him to drive a motor vehicle. I am satisfied that he had reached the stage where he was unable properly to control a vehicle.

5. At or shortly after 10 p.m. a number of those present decided to go to a club in Civic. A taxi was apparently called but it did not have enough room for all who wished to go to the club. The plaintiff and the defendant decided to go to the club in a vehicle which the plaintiff had borrowed, a utility. The two finished their drink and some time after 10 p.m. went out to the utility. The plaintiff tried to start it but was unable to do so. The defendant then suggested that the two should go to the club in his vehicle. In a statement made to the then Constable First Class Lawler on 2 April 1978 the plaintiff said:-

"Kevin (the defendant) then suggested that we

take his van. This van was at the front of
the Ethos so we walked round to his van. On
the way I said, 'Listen, do you want me to
drive?' He said: 'No, I'll be right.' The
reason I asked Kevin this, was that I knew he
had been at the hotel longer than I had been,
and I knew that I was less affected by liquor
than he was. By that I am not saying that
Kevin was visibly affected by liquor; he
looked all right to me."

6. It was suggested that this statement was made while the plaintiff was under the influence of sedatives and unable to describe accurately what happened on the day of the accident. I do not accept this, being satisfied that the statement represented accurately the plaintiff's recollection of what that conversation had been. I am also satisfied that at the Royal Canberra Hospital on the night of the accident the plaintiff said to Constable Lawler:-

"Why did I let the bugger drive? Why did I
let him drive?"

7. I am satisfied that on leaving the hotel the defendant drove his vehicle at an excessive speed south along Northbourne Avenue. Near the Parkroyal Motor Inn the defendant's vehicle collided with the right hand kerb of the southbound carriageway of Northbourne Avenue in which he was travelling. The vehicle mounted the kerb and travelled for some distance along the median strip between the two carriageways of Northbourne Avenue. The defendant was unable to regain control and the vehicle eventually collided with a tree on the eastern side of the road.

8. I am satisfied that the defendant was negligent in driving the van in the way he did and that that negligence was the cause of the accident and hence of the injuries sustained by the plaintiff. I am satisfied that the intoxicating liquor which the defendant had consumed contributed to the accident.

9. The defendant has raised defences of volenti non fit injuria and contributory negligence. As to the first of these it was said in Roggenkamp v. Bennett [1950] HCA 23; (1950) 80 CLR 292 at p 300:-

"The elements of the defence are conveniently
stated in Halsbury's Laws of England, 2nd
ed., vol. 23, at pp.716-718. There it is
said that: 'In order to establish the
defence, the plaintiff must be shown not only
to have perceived the existence of danger,
for this alone would be insufficient, but
also that he fully appreciated it and
voluntarily accepted the risk. The question
whether the plaintiff's acceptance of the
risk was voluntary is generally a question of
fact, and the answer to it may be inferred
from his conduct in the circumstances. The
inference may more readily be drawn in cases
where it is proved that the plaintiff knew of
the danger and comprehended it, as, for
example, where the danger was apparent, or
proper warning was given of it, and there was
nothing to show that he was obliged to incur
it, than in cases where he had knowledge that
there was danger but not full comprehension
of its extent, or where, while taking an
ordinary and reasonable course, he had not an
adequate opportunity of electing whether he
would accept the risk or not.'"

10. I am not satisfied that in agreeing to ride with the defendant the plaintiff not only perceived the existence of danger but also fully appreciated it and voluntarily accepted the risk. I am satisfied that his intention in asking the defendant about his condition was to satisfy himself that the defendant was fit to drive, having regard to the amount of intoxicating liquor which he had drunk. The plaintiff did not, I am satisfied, know how much the defendant had had to drink. Engaged as he was in a discussion concerning a topic apparently dear to the hearts of both of them, it seems to me more likely than not that the plaintiff was engrossed in that topic and that, although he enquired of the defendant concerning his condition, he did not fully appreciate what that condition was. I am therefore not satisfied that the defendant has, in all the circumstances, established, as he must, that the plaintiff fully appreciated the extent of the risk which driving with the defendant in his then condition entailed and voluntarily accepted the risk. That does not mean, of course, that the plaintiff is necessarily entitled to recover in full for the negligent driving of the defendant.

11. I am satisfied that the plaintiff should have appreciated the risk he was taking riding with the defendant. I take into account the fact that he had drunk two or three middies of beer himself, that he was engaged in what was no doubt a deeply interesting conversation to both and that he did enquire of the defendant as to his condition. Nevertheless, it seems to me on the evidence of the defendant's condition as observed some time later by police officers who gave evidence and of the defendant's manner of driving over some appreciable distance that the plaintiff ought to have realised that he was engaged in a perilous journey and taken measures to stop it. I consider his comment made to Constable Lawler on the night of the accident no more than an expression of regret that he had failed to take a step which would have prevented the accident and not as an expression of his appreciation of the risk he had run. It is exactly the sort of comment one would expect from somebody in the circumstances, an expression of the "might have been" when realisation dawns that an untoward result might have been prevented had a different course of action been followed.

12. Taking all these matters into account, I think the greater part of the responsibility for the plaintiff's injuries is to be borne by the defendant but I think the plaintiff was 30% responsible for those injuries and resultant damage.

13. The plaintiff suffered a crushed chest with pulmonary contusions, a fracture of the left femur, a sprained right ankle, a crush fracture of the body of the 5th lumbar vertebra and a fracture of the left great toe. Initially he was in considerable respiratory distress needing oxygen and assistance with his breathing. However, that condition gradually settled down and Dr Andrea, the surgeon who treated him on his admission to hospital for his chest injury, did not see him again in hospital after 28 March 1978. The fracture of the femur was managed by skeletal traction via a Steinmann pin through the tibial tubercle, the leg being immobilised in a Thomas splint. The pin was removed about 21 June 1978 and the plaintiff was discharged from hospital, walking on crutches, shortly after removal. At 11 July 1978 he was making adequate progress, the fracture uniting. When reviewed on 13 July 1978 the fracture of the toe was causing a good deal of pain. X-ray showed disturbance of the joint and eventually an arthrodesis of the joint was carried out by Dr Kitchin, his treating orthopaedic surgeon.

14. After he left hospital he noted that he was suffering from pain in the neck and this has got somewhat worse in the intervening period. He also has difficulties with his left knee and back.

15. The injury to his leg has left him with moderate shortening of the leg, about 1", and this causes a slight limp. Except for the problem which he experiences with his knee, a problem which was not satisfactorily explained on the medical evidence, he appears to have little difficulty with his leg. He has continuing pain in his back but his main problem is related to his chest injury. As to this there are two competing views. Dr May, called on behalf of the defendant, took the view that the condition of the chest from which the plaintiff undoubtedly suffers is not due to the accident. Dr Cassar, who has treated him since late 1980, is adamant that it is. Dr May's view depends on the history which he obtained from the plaintiff, a history not taken until almost six and a half years after the accident. Dr Cassar's view depends particularly upon the history which he was given by Dr Froggatt, now deceased, who referred the plaintiff to him in October 1980 for management of the chest condition. I accept that Dr Cassar had the more accurate history. This seems to me to be inherently more probable, particularly when one has regard to the fact that in November 1978 the plaintiff was complaining about chest pain to Dr Andrea and x-rays taken then showed minor changes at the bases of both lungs due to old injuries.

16. In the result, I am satisfied that the plaintiff suffers disability from his chest, back and neck, disability I find to be not totally incapacitating. I think his condition is such that he will no longer be able to carry out all that would be involved in painting, the trade in which he was engaged before the accident. The fumes of the paint trouble him and, leaving that aside, I am satisfied too that he would be unable to paint above his head because of his neck condition. Because of his limited education and work experience I do not think he would be able to obtain work on the ordinary labour market in competition with men who are fully fit. At the same time I think he could engage in lighter work and I am satisfied that if his physical fitness can be increased, as I think it can, with a programme of rehabilitative exercises he will be capable of carrying out some work requiring relatively little physical effort. I instance driving as a courier although account must be had of the possibility that prolonged sitting in a car would cause him incapacitating back pain.

17. On all the evidence I think he retains an earning capacity which I estimate at 30%.

18. The plaintiff was born on 6 July 1952 in Italy. He emigrated to Australia when aged 3. He left school when aged 14. On leaving school he worked first at a supermarket and then for the Australian Capital Territory Electricity Authority as a labourer. Then he became a trainee linesman and then a B-grade linesman. He continued as a linesman for some time. He then left that work and did labouring again until approximately 1974 when he began painting with his brothers who were contract painters, qualified tradesmen. He worked with his brother and his brother's partners for about three and a half years. He enjoyed the work and intended to continue painting in the expectation that he would go into partnership with his brother a little later. Before the accident his health was good.

19. I turn to the question of the plaintiff's loss of earning capacity. According to his tax return for the year ended 30 June 1978 his nett earnings as a painter after deduction of expenses for the period 1 July 1977 to 11 March 1978 (36 working weeks) was $7,310.00 or $203.05 before tax per week. Amongst the expenses deducted from the plaintiff's gross income were motor vehicle expenses. The award rate for a painter at the date of the plaintiff's accident was $211.30 per week. This included a fares allowance of $10.50. The 36 working weeks to which I have referred would have included the ordinary Christmas standdown of four weeks so that the plaintiff's average gross earnings after expenses and before tax would have been of the order of $228.44. I think it reasonable, therefore, to treat the plaintiff's earning capacity as equivalent to that of a journeyman painter employed under the award. I do this making allowance for the fact that the plaintiff would not have been entitled to holiday pay or sick leave benefits whereas a journeyman painter would.

20. Using as a guide the figures provided by Mr Cumpston, an actuary called on behalf of the plaintiff, and making due allowance for contingencies, for the fact that I think that the plaintiff has had some residual capacity to earn, at least since the hearing, and for the National Wage increases of 2.6% and 3.8% on 6 April 1985 and 4 November 1985 respectively, I fix the amount of the plaintiff's economic loss to date at $90,000. Assuming he would have worked as a painter until aged 60, I assess his loss of future earning capacity at $145,000. This has regard to the fact that in his case contingencies are hardly likely to be favourable and takes into account the residual earning capacity which I find him to have. I think the amount originally claimed for care during the plaintiff's recurrent bouts of pleuro pericarditis (see paragraphs 2.1(e) and 6.1 of Exhibit "L") to be much exaggerated. Compare Dr Cassar's report of 3 July 1984. I assess $25,000 as the appropriate figure for this item, past and future. I do not think the plaintiff has established any need for the services of a housekeeper as a result of his injuries.

21. Out-of-pocket expenses are agreed at $10,883.55.

22. For general damages, pain and suffering, loss of enjoyment of life and the like, I fix a sum of $50,000.

23. I think $56,000 an appropriate amount to award for interest in respect of past general damages and past loss of earnings.

24. I assess the plaintiff's damages, therefore, at $376,883.55 but because of his contributory negligence I think it just and equitable to reduce that amount by 30% to $263,818.48. I round that figure to $263,800 for which amount there will be judgment for the plaintiff.