David George Wedderburn v Robert Stanley Benson [1986] ACTSC 70 (21 July 1986)

SUPREME COURT OF THE ACT

DAVID GEORGE WEDDERBURN v. ROBERT STANLEY BENSON
S.C. No. 762 of 1984
Damages for Personal Injury

COURT

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

CATCHWORDS

Damages for Personal Injury - motor vehicle accident - fracture of talus of left leg and minor injuries - no matters of principle.

HEARING

CANBERRA
21:7:1986

ORDER

There be judgment for the plaintiff in the sum of $20,884.00.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff on 5 March 1982 when he was a passenger in a motor vehicle driven by the defendant. Interlocutory judgment was signed on behalf of the plaintiff for want of a defence on 14 October 1985. The defendant must be taken to have accepted the plaintiff's allegations as to liability. These were set out in the statement of claim as follows:

"2. At a point approximately half a kilometre

east of the intersection of the Brindabella
Road with the Cotter Lookout Road, Uriarra
aforesaid the said vehicle in which the
plaintiff was a passenger left the roadway
and overturned.

3. The collision was caused by the negligence
of the defendant, particulars of which are
as follows:

(a) Failing to keep any or any sufficient
lookout;

(b) Travelling at an excessive speed in the
circumstances;

(c) Failing to slow down, stop, swerve or
otherwise manage or control his said
vehicle so as to avoid it leaving the
road and rolling over."

2. Early in the hearing, however, the defendant put in issue the injuries which the plaintiff claims he suffered in the motor vehicle accident. There are some peculiar features surrounding the events before and after the accident. The plaintiff and the defendant were colleagues in the Australian Federal Police Force. The plaintiff was due to go on duty that night at 11 p.m. However, at about 7.30 or 8 p.m. they went together in the defendant's vehicle for the purpose of adjusting the sights on a rifle owned by the defendant. They travelled past the Cotter Reserve to a turnoff about twenty to twenty-five kilometres from the city and turned off the bitumen road into an unmade forest road. According to the plaintiff in cross-examination, the work on the rifle had been completed by about 9 p.m. and they were on their way back to the city. The plaintiff said in his evidence-in-chief that the vehicle was proceeding in a southerly direction, which would have been away from the city, but nothing seems to have been made of this and nothing seems to turn on it. Then, according to the plaintiff's evidence-in-chief, another vehicle came around a corner, the defendant moved the vehicle to the left, the road gave way and the vehicle rolled over six or seven times down a hill. The plaintiff said that he was left hanging in the seatbelt but managed to extricate himself. He was bleeding from the nose, sore all over and his left ankle was extremely painful. Nevertheless, he and the defendant managed to walk back up the hill and then the mile or so to the main road where they eventually got a lift to Fyshwick. How the plaintiff then got from Fyshwick to his home at McGregor was not disclosed. The plaintiff said that he informed his supervisor of what had happened, presumably by telephone, but I reject the plaintiff's evidence on this aspect. Documents produced from the Commissioner for Police contain an entry that on the night in question the plaintiff was granted special leave, with a remark noted "wife ill - cared for children". The plaintiff was unable to explain this entry and I see no reason why it should not be accepted as a record of what the plaintiff told his supervisor for the purpose of obtaining leave on the shift in question.

3. The plaintiff said that over the next few days he noticed pain in the left ankle, both knees and his right shoulder but that as he was able to control the nature of his duties to some extent, this did not prevent him working.

4. The plaintiff's wife gave evidence as to his arrival home on the night of the injury in obvious pain and discomfort and I see no reason to reject her evidence. On 10 March 1982 the plaintiff consulted his local practitioner, Dr. Berenson, who noted bruising on the knees and legs and complaints of pain in the right hip, shoulders, left knee and left ankle. There was no improvement on 1 April 1982 and the plaintiff was referred to Dr Stubbs. Dr Stubbs saw the plaintiff on 11 May 1982 and saw some x-rays. It is not clear when these were taken, but that is, in my view, of no consequence. They disclosed, according to Dr Stubbs' report, a fracture of the tail of the talus. No treatment was indicated. Dr Stubbs also noted deep bruising to the right shoulder and formed the view that there had been some retro-patella injury to the knees. Dr Stubbs continued to see the plaintiff over 1982 and the following year and on 7 May 1983 performed an operation in which part of the talus bone was removed. When last seen by Dr Stubbs on 28 July 1983 the plaintiff's condition was improving in the ankle. The shoulder and knees had recovered. Dr Stubbs suspected tenosynovitis in the ankle and noted the plaintiff's complaint that it swelled after jogging.

5. Dr Andrea saw the plaintiff on behalf of the defendant but his report really adds nothing to the general picture except his opinion that the plaintiff when seen on 21 February 1985 had disability in the left ankle, not severe but sufficient to prevent the plaintiff playing very active sports. Dr Andrea was sceptical of any continuing disability in the knees and shoulder. When last seen by Dr Andrea on 7 March 1986, the plaintiff's calves were noted as being normal in circumference, suggesting that the plaintiff was using both feet normally.

6. The plaintiff's complaints in evidence were much the same as he made to Dr Stubbs. He conceded that the initial bruising and shock had gone by the time he first saw Dr Stubbs but he claimed that the pain in the ankle remained the same. In particular he said that it gave him difficulty when he was walking over uneven ground and on one such occasion which, according to the Australian Federal Police Records, appears to have been on 1 July 1982, he suffered an "aggravated minor left ankle twist" which caused him to lose two weeks from work. Again this was corroborated by his wife insofar as she gave evidence of a complaint by the plaintiff of increased pain in his ankle after some such incident. In the second half of 1982, some months after the accident, the plaintiff was giving consideration to leaving the Police Force and going into business as a loss assessor. He said in his evidence that the reason he did this was because the business of a loss assessor involved less activity than that of a policeman. I am unable to accept this explanation. I am not convinced on the balance of probabilities that the plaintiff had not for sometime been contemplating leaving the Police Force and I am not convinced even that the injury hastened his departure. There was, however, in January 1983 another incident when the plaintiff's ankle gave way when he was attending a police barbecue at Weston Park. Pain in the ankle once again increased. He saw Dr Stubbs on 17 January, three days after the incident. An injection of Depomedrol was unsuccessful and the plaintiff underwent treatment by surgery at the Calvary Hospital on 7 April 1983 and when reviewed on 29 June, although the plaintiff still complained of swelling at the end of the day and tenderness about the scar, it had improved sufficiently for him to go running "for the first time in many months". Dr Stubbs was told that the plaintiff was then presently back at work with the Police Force. However, this was not the case. The plaintiff had not worked since the date of the incident on 14 January. He resigned in fact from the Police Force by letter dated 30 May 1983. He was by that stage under investigation from the Internal Affairs Division because of his activities in the loss assessor's business. The business name was registered and the business commenced trading in November 1982. The business is in fact prospering at the present time, although the plaintiff says that he has difficulties getting around on rural properties if he has to make investigations in such places.

7. The plaintiff was not an impressive witness and he was clearly shown to have been dishonest in his dealings with the Police Force. However, there is not and cannot be a rule of law that because an injured plaintiff is dishonest he is liable to have the damages for his injuries reduced. What the dishonesty means, in my view, is that the plaintiff's evidence has to be approached with some care. I have regarded his evidence, in fact, with scepticism. Nevertheless, the history of complaints to the doctors and the corroborative evidence so far as it goes from his wife tends to support a good deal of what the plaintiff has claimed in evidence. There is no doubt in my mind that despite the unusual nature of the events surrounding his injury, he did in fact sustain a fracture of the talus which in due course required operative treatment. I take into account that the police records indicate that from 30 December 1981 to 3 January 1982 the plaintiff lost five days from work because of "sprained ankle/heel" and it is curious that the plaintiff was unable to remember this. Nevertheless, even if he had suffered some sort of a sprain to the left ankle in January 1982, that in no way would prevent him from fracturing the talus bone in the incident on the night of 5 March.

8. The plaintiff claimed that after the operation in April 1983 he was for about a month "immobilised virtually". This, in my view, was clearly an exaggeration, but I accept that it was about two months before the plaintiff would have been fit for work. In fact he never returned to the Police Force and this was because of the knowledge that the Police Internal Affairs Section was looking into his activities in the loss assessor's business. In any event he was satisfied to take the option of going into that business on a full-time basis.

9. The plaintiff claims that at the present time his knee still locks from time to time, and that his shoulder is worse than it ever was, that it locks and prevents him sleeping on his right side at all. He takes no medication for either shoulder or knee. He says that since the injury he has been unable to coach the junior rugby football team, which he had coached for approximately three years. I would accept that the plaintiff's ankle is a sufficient impediment to prevent him from carrying on the coaching of a football team. On the other hand I am not convinced that he would necessarily but for the injury have continued in that pursuit. I accept that the injury would interfere to some extent with golf and squash. The plaintiff however said that before the accident he used to run every day for two or three miles but since then he simply cannot run because this activity is too painful. This is clearly in the face of what he told Dr Stubbs and I reject it. I accept that if the plaintiff is required to walk over rough or uneven ground it may affect his ankle, but this has not had any effect upon his earning capacity. I see no reason why the plaintiff should be continuing to complain of pain in his right shoulder and I do not accept that he has more than minimal disability in this regard. I accept that the plaintiff's ankle still gives way from time to time because this was corroborated by his wife. The plaintiff's evidence about his restrictions in the sporting area were not so corroborated. I am not convinced on the medical reports that the plaintiff's symptoms will continue into the indefinite future. I conclude that they will be minimal in the near future.

10. There was some evidence about marital difficulties and the plaintiff losing some time from work between 13 December 1982 and 13 January 1983. However, no claim was made that this was due to the injury, the plaintiff says that it was related to some nervous upset, and I do not think that it plays any part in the case at all. The plaintiff further complained that since the injury he has suffered from a blockage of the left nostril. Once again, Mrs. Wedderburn spoke of the plaintiff coming home on the night of injury with his nose bleeding and of his increased propensity to snore at night. There was complaint to Dr Berenson on the first or second occasion when that doctor saw the plaintiff in March and April 1982 of nose blockage with no symptoms prior to the injury. Dr Berenson thought that the nasal septum appeared deviated to the left. The plaintiff saw an ear, nose and throat specialist, Dr Williams, for this condition on 25 August 1982. Dr Williams thought that the nasal obstruction was consistent with trauma in March 1982 and considered that it would remain unless corrective surgery was undertaken, that surgery providing a good chance of considerably improving the symptoms. There is no evidence as to the cost of the surgery or to the plaintiff's attitude to it. I am not convinced that the defendant has shown that the plaintiff has failed to mitigate his damage in this regard. I accept that the nasal condition is the result of the injury. I am not convinced that it is of more than nuisance value.

11. The plaintiff's out-of-pocket expenses are agreed at $1,647.50 and his loss of wages to date at $3,640.42. There is no claim for loss of earning capacity. I assess general damages at $12,000 as to which I apportion $10,000 as to the past. Worker's compensation of $836.67 was paid. I award interest on $12,804 at 14% per annum, the total reduced by half, amounting to $3,884. Total damages are rounded out to $17,000 to which the interest will be added. The plaintiff is to have judgment for $20,884. I shall hear the parties on costs.