Deborah Jane Smith v Michael Timothy London [1986] ACTSC 67 (18 July 1986)

SUPREME COURT OF THE ACT

DEBORAH JANE SMITH v. MICHAEL TIMOTHY LONDON
S.C. No. 1667 of 1981
Negligence - Damages for Personal Injury

COURT

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

CATCHWORDS

Negligence - Plaintiff passenger - Defences of contributory negligence and volenti non fit injuria raised - No question of principle.

Damages for Personal Injury - Plaintiff precluded from further employment except of most limited kind - Brain damage - No question of principle.

HEARING

CANBERRA
18:7:1986

ORDER

There be judgment for the plaintiff in the sum of $401,631.00.

The defendant pay the plaintiff's costs of and incidental to the action.

DECISION

This is a claim for damages in respect of severe injuries sustained by the plaintiff when the car in which she was a passenger and which was then being driven by the defendant collided with a tree. Although liability is denied I am satisfied from the evidence of Mrs Redden, of Sergeant Armstrong and of the defendant himself that his negligence was the cause of the injuries sustained by the plaintiff. No submission to the contrary was made.

2. However, defences of volenti non fit injuria and of contributory negligence were raised. Particulars of both defences were given. I set out those particulars in full.

3. As to the first:-

"(a) She rode with the defendant fully aware

that the competence of the defendant to
drive the said motor vehicle was
affected because of his consumption of
intoxicating liquor;

(b) She rode and travelled in the said motor
vehicle then being driven by the
defendant who was a person, to her
knowledge, affected by intoxicating
liquor and whose capacity and competence
to drive the said motor vehicle was
impaired by that fact.

(c) She travelled in a car with a person
driving faster than was safe in the
circumstances and she failed to ask him
to slow down or to let her out of the
car.

(d) The plaintiff was aware that in addition
to consuming alcohol the defendant had
taken serepax and was or should have
been aware that his ability to drive
would be affected thereby."

As to the second:-

"(a) That at the time of riding as a
passenger in the said motor vehicle and
prior to that time the plaintiff knew or
ought to have known that the ability of
the defendant to manage or control the
said motor vehicle was impaired by his
consumption of intoxicating liquor;

(b) The plaintiff travelled in a car with a
person driving faster than was safe in
the circumstances and she failed to ask
him to slow down or to let her out of
the car;

(c) The plaintiff was aware that in addition
to consuming alcohol the defendant had
taken serepax and was or ought to have
been aware that his ability to drive
would be affected thereby."

4. Because of her injuries the plaintiff has no recollection of the accident or of the events leading up to it.

5. On the afternoon and evening of 7 November 1978 a number of young people had gathered at 13 Sladen Place, Curtin where the defendant then lived with Michael Timms and Bill Shipman. The defendant was unemployed at the time. He gave evidence that at about lunchtime on that day he went with a friend to an hotel where he spent the afternoon conversing and drinking beer. He said he drank roughly eight 15 ounce glasses. Somewhere between 2 and 3 p.m., after the Melbourne Cup had been run, he telephoned the plaintiff at her place of work to ask whether she would be coming to his home that evening for a meal. She replied that she would be coming with Kathy McDonald at about 7 or 7.30. He said that he told her that he was telephoning from the hotel.

6. He said that at about 6 p.m., having first purchased some meat, he returned to 13 Sladen Place as a passenger on his friend's motor cycle. Bill Shipman arrived home from work at what would have been between 6.15 and 6.30 and Michael Timms arrived home at about the same time. He said that normally the three took it in turns to cook the evening meal, but that evening he was not quite up to cooking because, so he said, he was drunk. The other two prepared the meal. Between 7 and 7.30 the plaintiff arrived with Kathy McDonald. The meal was eaten. The defendant had had, he said, a glass of beer on his return home. When Shipman and Timms returned home they had a glass of beer but he does not recall whether he had another glass or was still sipping from the glass he had started with. He said that he had a glass of beer and a glass of wine with the meal.

7. During the meal there was discussion concerning his car which he had modified extensively by installing a turbo-charger and which he was anxious to sell as soon as possible. At about 8.30 he issued an invitation to those present to go for a ride in the car. Nobody accepted the invitation immediately. At about 9 p.m., he said, Dawn Redden, then Dawn Michael, arrived. Subsequently he repeated the invitation and Kathy McDonald accepted.

8. He gave evidence that Miss McDonald, now Mrs Ginnane, then said, in the presence and hearing of the plaintiff, "Would anybody like a Serepax?" He replied that he would. The other young men were in the room but he was not certain that Mrs Redden was, thinking that she may have been in the kitchen. He said that when he accepted Mrs Ginnane's invitation she went to the plaintiff to ask her for a Serepax. The plaintiff took one from her handbag, gave it to Mrs Ginnane who went to the defendant, put the pill in his hand and said, "Take this, it will make you feel good". Mrs Ginnane then accompanied him on a short drive. When they returned he put the car in the back yard, locked it up and closed the gates. He then went inside the house and, going to the bathroom, brushed his teeth and combed his hair in preparation for going out as the group had planned to do. Further conversation followed and eventually the plaintiff and Mrs Redden agreed to go for a ride with the defendant in the car.

9. The defendant described the route he had followed before the collision with the tree took place. His description of the route, given in evidence 6 1/2 years later, accords almost exactly with that given by Mrs Redden in a statement which she made to the police ten days after the accident and which was tendered by counsel for the defendant.

10. It is instructive to compare the accounts given by each of one incident that took place during the drive. The coincidence between the accounts as to the route followed, allowing for the different viewpoints, is remarkable.

11. The defendant swore that as he approached one intersection he released the accelerator but the car did not slow. He thereupon braked heavily and the car slid to a halt about a quarter of the length of the car past a line on the road indicating the point where cars were required to stop in obedience to a Give Way sign. Mrs Redden's account in her statement was as follows:-

"As we approached (that) intersection I again
became frightened because I didn't think we
could stop in time. When we were about 20
metres from the intersection the car suddenly
braked sharply and slid sideways, stopping
halfway across the intersection. It appeared
to me that (the defendant) was showing off
and I was scared to ask him to slow down, in
case it made him worse."

12. In my opinion the defendant's evidence showed him to have a remarkably accurate memory for events long past, a memory so retentive and accurate as to indicate that at the time of the events in question he was in full control of his faculties and unlikely to have been so affected by any consumption of alcohol or of the drug Serepax as to appear incapable of driving the motor vehicle in question.

13. It is to be noted that although Mrs Redden was called on the first day of the hearing to give evidence on behalf of the plaintiff, was cross-examined and recalled for further cross-examination on the second day, it was not suggested to her that when he took the car for the drive during which the accident occurred the defendant's faculties were impaired or apparently impaired by any alcohol or Serepax which he had taken. Neither was any question put in chief to the defendant to suggest that his faculties were so impaired at the relevant time. The only evidence he gave concerning his consumption of alcohol and his condition on the day in question was that set out above. It was not suggested to Mrs Ginnane that when the defendant took her as his sole passenger for a drive at about 9.30 p.m. his condition was or appeared to be that of one incapable of driving without due care or that alcohol or Serepax had affected or apparently affected his ability to drive.

14. When Mrs Ginnane was cross-examined by counsel for the defendant she was asked what she recalled about the defendant's drinking. She replied, "Well, he was not drunk or did not appear to be drunk to me". It was then put to her that she had said to police after she arrived at the scene of the accident that the defendant was drunk. She agreed that she might well have, but denied that that expression of opinion, if she had used it, was consistent with her opinion of the defendant's condition immediately before the accident. Counsel for the defendant did not call any police officer who attended at the accident to give evidence of the defendant's condition at the time or that Mrs Ginnane had made the reply referred to above.

15. Apart from the evidence about the Serepax incident, the evidence of the defendant's insobriety (whether induced by alcohol or Serepax or a combination of both) is therefore confined to his statement that at the time when he would normally have prepared dinner on that evening, apparently shortly after 6.15 p.m., he was drunk, to his evidence that on his arrival home at about 6 p.m. before the meal was prepared he had a glass of beer, that possibly he had another glass of beer after Timms and Shipman had arrived home and that at some time after a point somewhere between 7 and 7.30 p.m. he had had with his evening meal a glass of beer and a glass of wine and to the suggestion made to Mrs Ginnane. Mrs Redden's statement shows that she did not arrive at 13 Sladen Place, Curtin until about 9.45 p.m. on that evening. Clearly some time elapsed before she was finally persuaded (and she seems to have taken some persuasion as appears from the evidence of Mrs Ginnane and indeed from that of Mr Timms) to go for the ride.

16. Some hours must therefore have elapsed between the point at which the defendant described himself as drunk and the time when he drove the car on the trip which resulted in the accident and during that period the defendant on his own evidence had only one glass of beer and a glass of wine in quantities not determined by the evidence as well as the Serepax tablet.

17. In all the evidence there is no suggestion that the defendant's condition was such that it was obvious or ought to have been obvious to any sober, sensible person observing him that his capacity to drive had been impaired by the consumption of alcohol or Serepax or of both.

18. The evidence fails to satisfy me on the balance of probabilities that his condition at the time when he drove the plaintiff was such that he was incapable of driving the car or, more importantly, that, if he were, his incapacity was obvious or ought to have been obvious to the plaintiff or any sober, normally observant person.

19. Mrs Ginnane denied that the incident concerning the Serepax tablet had occurred. I do not doubt her honesty but think she was mistaken. On the whole of the evidence, I prefer to accept the defendant's evidence that it did. His evidence is supported by that of Michael Timms. I have reservations as to Mr Timms' evidence about the plaintiff's use of drugs, reservations with which I will deal more fully when I come to deal with the question of damages, but I accepted him as to the particular incident.

20. Generally I did not accept the defendant as a witness of truth. He admitted lying to a jury trying him in relation to a charge arising out of the accident when he made an unsworn statement. I did not accept his evidence, upon which his counsel did not seek to rely, that during the second drive his car developed mechanical trouble of some kind. He told an investigating police officer shortly after the accident that during the day he had half a bottle of beer and a glass of wine and admitted in evidence that that was a lie. In the absence of evidence to corroborate him I cannot be satisfied that he was drunk, as he said, earlier in the evening. I am certainly not satisfied that his capacity to drive was impaired by alcohol or Serepax or both or that his appearance was that of one so incapacitated. In reaching this conclusion I accept the medical evidence that Serepax "potentiates" alcohol.

21. I do not accept that the plaintiff contributed to her damage by failing to ask the defendant to slow down or to let her out of the car. For one thing there is only the evidence of Mrs Redden that she did not hear the plaintiff make such a request. For another the defendant was not questioned concerning any such failure and, finally, I note the attitude of Mrs Redden shown in the passage from her statement from which I have already quoted.

22. In my opinion such a request would have been of no practical value and in her situation the plaintiff is not to be blamed for not making such a request, if indeed she did not, a matter about which, as I have indicated, I am not satisfied. I think Mrs Redden's attitude, akin to that of one caught in the agony of the moment, demonstrates the weight to be given such an allegation.

23. Accordingly, I reject the defences of contributory negligence and volenti and there must therefore be a verdict for the plaintiff.

24. As I have indicated, the plaintiff suffered severe injuries. They are listed in a report made by Dr Cairns, an orthopaedic surgeon who treated her, on 28 December 1978. They were:-

1. Severe head injury with unconsciousness;

2. Left facial laceration;

3. Multiple rib fractures associated with flail chest
and severe pulmonary contusion;

4. Unstable fracture of the pelvis;

5. Open fracture of the left radius and ulna;

6. Closed fracture of right tibia and fibula;

7. Closed fracture of right os calcis;

8. Multiple bruises and abrasions.

25. She required intensive resuscitation which was given under the direction of Dr J. Scott-Findlay. Her chest injury was described by Dr Nott who treated her for it as "a severe chest injury with multiple fractured ribs and contusions to the left lung". Dr Nott inserted an intercostal catheter to drain a haemopneumothorax on the left side. The chest injury required continuing intensive management with the performance of multiple bronchoscopies to maintain a clear airway. By the end of the third week the chest injury appeared to be well under control and almost completely resolved. She is left with a moderately deformed left chest cage but no other residual disability from it.

26. Reporting on 4 January 1979, Dr Cairns advised that in respect of her musculo-skeletal injuries the plaintiff had undergone appropriate primary treatment of the various fractures and subsequently underwent internal fixation of the forearm fractures and of that of the right tibia. A traction pin was inserted in the left femur in order to treat the pelvic fracture with traction. That pin was subsequently removed on an unidentified date before 4 January 1979. On 26 February 1981 she underwent surgery for the removal of the internal fixation devices from her left arm and right tibia. Dr Cairns said her disability remained as a left-sided hemiparesis as a consequence of her head injury with functional restriction of movement in pronation and supination movements of the left forearm and restriction of movement at the wrist but with no significant disturbance in function in relation to the right lower extremity related to the fracture. The residual disability in her left upper extremity was contributed to by and complementary to the effects of the neurological injury, "insofar as aside from the muscle weakness there (was) residual restriction of movement at the forearm and wrist level as a consequence of the fractures themselves".

27. A facial laceration was sutured by a plastic surgeon, Dr James. She suffered damage to her eyes. Dr Walker reported that her corrected vision in March 1979 was then 6/6 slowly in each eye with a small amount of myopia in the right eye which probably predated the accident. She had, he said, divergent eyes, mainly the left, but it could be either and her visual field was reduced so that the left side of the field in each eye was missing (left homonymous hemianopia). There was atrophy of the optic disc in the right eye on the temporal side. Glasses were necessary for distance use but she did not need to wear them for reading. He considered it unlikely that the visual field would ever change.

28. In the result, the injury to the pelvis has meant that should the plaintiff have children she must necessarily have them by caesarian section.

29. The head injury suffered by the plaintiff has had the most serious results. It and its treatment are described in the reports by Dr Newcombe, a neurosurgeon. The reports were tendered and no cross-examination was directed to their contents. I accept them as accurate. She required surgery, a ventriculo-peritoneal shunt, for treatment of post-traumatic hydrocephalus. The shunt appears to be working well but will probably require attention to maintain its patency once every 10 years or so.

30. In May 1982 the plaintiff was admitted to Woden Valley Hospital under the care of Dr Tennant, a psychiatrist. Amongst other things she required treatment for overweight and abuse of a slimming drug.

31. Reports by Dr Tennant were tendered and I accept them as accurate save that I think as a result of consideration of the whole of the evidence that her estimate of the plaintiff's future dependence is too pessimistic. On this aspect of her case I prefer the general thrust of the evidence called on behalf of the defendant.

32. I accepted the evidence of her parents as accurately depicting her condition since the accident, her circumstances and what has been and is being done to assist her. I formed the conclusion that her parents were very caring people, somewhat inclined, I think, to give more assistance to the plaintiff than she actually needs. However, I do not think one can criticise them for that. On the whole, I am satisfied that a fair assessment of the actual need, whether it be psychological or physical, which the plaintiff has for assistance from her parents or, in their absence, from some equivalent source of care, is of the order of seven hours per week. I accept that on her discharge from hospital initially, she needed much more assistance than she presently does.

33. On all the evidence I am satisfied that the plaintiff has suffered almost a total loss of earning capacity as a result of the accident. She did return to work after the accident (on 2 July 1979) but was eventually compulsorily retired because, I am satisfied, of her attitude to her work and her workmates and general incapacity. She is presently employed in a sheltered workshop and earns $1 per hour for the work she does there.

34. The evidence establishes sufficiently, in my opinion, that before the accident the plaintiff indulged in the use of marijuana and, from time to time, in other drugs such as Serepax and Mandrax. I am also satisfied that on very rare occasions she used heroin, injecting it once and "snorting" it a few times. I consider that her use of these drugs before the accident was indicative of a rebellious spirit and not of any serious drug abuse. Nevertheless, I have to accept that there was a risk that she might have become addicted to one or more of the drugs of which she made use. I do not accept that she carried drugs around in her handbag and consumed them like lollies as Mr Timms said, preferring to accept the evidence of Mrs Ginnane who described the use that both she and the plaintiff made of drugs. While I did not think that the plaintiff was as strong a character as Mrs Ginnane, I think, nevertheless, that their friendship would, far more probably than not, have eventually stopped her usage of the drugs in question. Nevertheless, it has to be taken into account and I propose to do this by discounting appropriately and quite substantially the damages which I would otherwise have awarded in respect of pain and suffering and loss of enjoyment of life.

35. In assessing the plaintiff's damages I take into account the difference in her pre-accident and post-accident appearance, a difference which includes scarring and which I attribute to the accident. I take into account, too, that her chances of making anything like a satisfactory marriage have been much diminished. I think that on the whole she is able to do work of a higher level than that in which she is presently engaged but that, given her disabilities, she will not be able to sell any residual capacity for employment which she has in any market reasonably available. She is, I think, to be taken as virtually unemployable.

36. In assessing her loss of economic capacity I assume that she would have married in due course and probably had children. She would therefore, I think, have been out of the workforce for some period which I take into account by an appropriate discount which has regard, nevertheless, to modern conditions and attitudes towards working mothers and maternity leave.

37. As I have indicated, I do not think she will ever be truly independent. I note that she took a trip to England, travelling by herself, but I am satisfied that the arrangements made were such as to indicate her dependence on others. I take into account also that she is well aware of her psychological and intellectual deficiencies caused by the accident. I do not expect these to diminish in any way. In reaching this conclusion I have taken into account as accurate all the evidence of psychological and psychiatric testing referred to in the various reports which were tendered. Although counsel for the defendant suggested that she had a diminished awareness of her injury induced deficits, I do not think that this is so.

38. In calculating economic loss I have taken into account the increases (a nett 70 cents in the dollar after taxation) effected by recent National Wage cases. I have allowed for the amount she presently earns at a sheltered workshop. I have not made any allowance for the fact that she might have been promoted during the course of her working life. In the nature of things, it seems to me to be highly improbable that she would not have gained at least some promotion and this would normally count as a favourable contingency in her favour. It seems to me that to make no allowance on account of it effects a substantial discount in favour of the defendant.

39. In assessing general damages for pain and suffering and loss of enjoyment of life, I have had regard to the fact that the plaintiff still enjoys many things - music, to some degree the work which she now does, fortnightly visits to a club she has joined, shopping and light reading, to name some. The picture is not one of unrelieved gloom.

40. I have assumed a working life ending at age 60 although the possibility that she might have worked to age 65 cannot be discounted. Not to make any specific allowance in respect of that possibility is to make an additional discount in favour of the defendant.

41. For hospital and medical expenses incurred to date I allow the sum of $16,681. In respect of past loss of wages I allow $31,500. For future economic loss I allow $180,000. For general damages for pain and suffering and loss of amenities and enjoyment of life I allow $90,000.

42. In respect of past care I think it reasonable to allow for care at the rate of 20 hours per week for the first year after the plaintiff came out of hospital and thereafter at the rate of 7 hours per week to date and continuing indefinitely since I see the need for that care while the plaintiff lives. For past care, therefore, I allow the sum of $17,750 and for future care the sum of $60,000. The allowance for future care is based on the plaintiff's attaining the age of 70 years but I make some allowance for earlier death.

43. I allow for four shunt operations at intervals of 10 years from the time of the first such operation. Using a discount factor of 3% and bearing in mind the dates when the operations are likely to take place, I allow $4,300 on this account.

44. For continuing medical care I allow one visit to a general practitioner and one to a specialist per year and allow on this count $1,400.

45. In assessing the figures I have been mindful of the need to guard against overlapping but I am satisfied that there is none. Accordingly, I order that there be judgment for the plaintiff in the sum of $401,631.00.