Richard Bruce Bennett-Kesby v Dianne Mead [1987] ACTSC 64 (17 September 1987)

SUPREME COURT OF THE ACT

RICHARD BRUCE BENNETT-KESBY v. DIANNE MEAD
S.C. No. 1298 of 1980
Negligence

COURT

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

CATCHWORDS

Negligence - Contributory negligence - Previous litigation between parties arising out of same accident - Issue estoppel - Whether plaintiff estopped from alleging no negligence on his part or lesser contributory negligence than that earlier found against him - Damages - No new question of principle involved.

Azzopardi v. Bois (1968) VR 183

Bollen v. Hickson (1980) QdR 327

Bollen v. Hickson (1981) QdR 249

Mills v. Cooper (1967) 2 QB 459

HEARING

CANBERRA
17:9:1987

ORDER

There be judgment for the plaintiff in the sum of $24,161.50.

DECISION

The plaintiff sues for damages for personal injury sustained by him in an accident which occurred on 13 March 1979 and which he alleges was due to the negligence of the defendant. At the outset of the hearing counsel for the defendant submitted that there was an issue estoppel against the plaintiff. That issue estoppel arose, he said, in the following way. By her action numbered S.C. 641 of 1980 commenced in this Court on 31 March 1980 the defendant sued the plaintiff for damages arising out of the accident referred to above. She alleged that the collision in which she too was injured was caused by the plaintiff's negligence. She gave particulars of that negligence as follows:-

"(a) Failing to keep any or any proper

lookout.

(b) Failing to keep his motor vehicle under
any or any proper control.

(c) Failing to steer or control his said
motor vehicle so as to avoid the said
collision.

(d) Failing to apply the brakes on his said
motor vehicle in time to avoid the said
collision or at all.

(e) Failing to sound any warning of the
approach of his motor vehicle in
accordance with the provisions of
Section 136 of the Motor Traffic
Ordinance 1936 as amended."

2. By his defence to that action the plaintiff alleged that the damage sustained by the defendant was caused or contributed to by her negligence. Particulars of that contributory negligence were given as follows:-

"(a) Failing to keep any or any proper
lookout.

(b) Failing to give way to the right.

(c) Failing to drive with due skill and
attention."

3. I heard the defendant's action against the plaintiff. In my reasons for judgment delivered on 19 July 1984, I said:-

"On all the evidence, including the
photographic evidence, I am satisfied that
the (plaintiff's (now the defendant's)) car
when it finally stopped was well to the east
of the double yellow lines running along the
centre of Denison Street, leaving sufficient
room for the van (then being driven by Mr
Bennett-Kesby) to have passed easily between
the car and the double yellow lines.

I am satisfied that the (plaintiff) failed to
keep a proper lookout and that, having seen
the (defendant's) car too late, he panicked
and in doing so steered the van to the left.
I am also satisfied that until the collision
there was no turning indicator operating on
the van.

I am therefore satisfied that the (plaintiff)
was negligent and that he contributed in
large part to the accident which occurred.

However, I am also satisfied that the
(defendant) contributed to her own damage.
She was under a duty to give way to the van
approaching from her right. Had she kept a
proper lookout she would have seen the van
and not moved past the imaginary line until
it had passed. Once she drove out beyond
that while the (plaintiff) was approaching,
much closer to her, as I am satisfied, than
his evidence indicates, she took the risk,
albeit unwittingly, that the (plaintiff)
might take some action which was
inappropriate. Had the (plaintiff) been
keeping a proper lookout he must have
appreciated the possibility of a collision or
other dangerous situation a good deal earlier
than he did and been able to take adequate
avoiding action. But the (defendant) failed
to give way to some extent and helped to
create the dangerous situation which ought to
have been avoided by the (plaintiff) had he
exercised due care. In all the circumstances
I am satisfied that the (defendant's)
responsibility for the accident should be
assessed at one quarter."

4. By his statement of claim in the present action which was commenced on 20 June 1980 the plaintiff alleged that the defendant was negligent in:-

"(a) Failing to keep a proper lookout;

(b) Failing to stop, swerve, accelerate or
otherwise manage and control her motor
vehicle so as to avoid colliding with
the plaintiff's vehicle;

(c) Failing to stop her motor vehicle so as
to avoid colliding with the plaintiff's
motor vehicle which was on her right in
contravention of Section 122 of the
Motor Traffic Ordinance 1936."

5. The defendant pleaded by her defence that the accident was caused or contributed to by the negligence of the plaintiff. She gave particulars as follows:-

"(a) Failing to keep any or any proper
lookout;

(b) Failing to maintain proper control of
his motor vehicle;

(c) Driving at a speed which was excessive
in the circumstances;

(d) Entering an intersection without due
care and regard for the presence of
other road users in or about the said
intersection;

(e) Failing to stop, to slow down or to
swerve or in any other way so to manage
or control the said motor vehicle so as
to avoid the said collision;

(f) Failing to warn the defendant of the
presence of his motor vehicle within the
said intersection."

6. No other issue as to liability for negligence or contributory negligence between the parties was canvassed during the course of the earlier hearing.

7. In Azzopardi v. Bois (1968) VR 183, Adam J. said, at p 185:-

". . . for issue estoppel to operate, the issue
in question must have been the subject of
adjudication in previous litigation between
the same parties or their privies. And what
is of particular relevance to the present
case, the very issue sought to be litigated
in the subsequent proceedings must, in
substance at least, be identical with the
issue previously adjudicated upon. As Lord
Romer said in New Brunswick Railway Co. v.
British & French Trust Corporation, [1997] UKHL 17; (1939)
AC 1, at p 43; (1938) 4 All ER 747, at
p 770: 'It is no doubt true to say that
whenever a question has in substance been
decided which has in substance formed the
ratio of, or been fundamental to the decision
in an earlier action between the same
parties, each party is estopped from
litigating the same question thereafter. But
this is very different from saying that he
may not thereafter litigate, not the same
question, but a question that is merely
substantially similar to the one that has
already been decided.' The requirement that
the issue must have been fundamental to the
earlier court's decision is stressed by
Dixon, J. (as he then was), in what has long
been recognized as a classic statement of the
doctrine of issue estoppel. In Blair v.
Curran [1939] HCA 23; (1939), 62 CLR 464, at pp 531-2,
his Honour said: 'The estoppel covers only
those matters which the prior judgment . . .
necessarily established as the legal
foundation or justification of its conclusion
. . . . Nothing but what is legally
indispensable to the conclusion is thus
finally closed or precluded. In matters of
fact the issue-estoppel is confined to those
ultimate facts which form the ingredients in
the cause of action . . . . In the phraseology
of Coleridge, J., in R. v. Inhabitants of the
Township of Hartington Middle Quarter (1855),
4 El & Bl 780; 119 ER 288, the judicial
determination concludes not merely as to the
point actually decided, but as to a matter
which it was necessary to decide and which
was actually decided as the groundwork of the
decision itself, though not then directly the
point at issue. Matters cardinal to the
latter claim or contention cannot be raised
if to raise them is necessarily to assert
that the former decision was erroneous.'
For issue estoppel to apply, the previous
determination of the issue must, of course,
have been that of a court of competent
jurisdiction; but otherwise the status of
that court is immaterial. Estoppels may
arise in the Supreme Court from
determinations of courts of petty sessions:
see Kosanovic v. Sarapuu, (1962) VR 321."

8. Adam J. was dealing with a case where the defendant had obtained damages, being the cost of repairs to his motor car, for negligence against the plaintiff in an earlier action in a court of petty sessions. The plaintiff, Azzopardi, had counterclaimed for similar damages. In the result the learned Magistrate found that each had suffered damages as a result of the negligence of the other and held that Azzopardi's damages should be reduced by 40% and Bois' damages by 60% having regard to the share of each in the responsibility for the damages.

9. When deciding a question of law raised in connexion with a claim by Azzopardi for personal injuries he had sustained, Adam J. held that because of the previous proceedings Azzopardi was estopped from alleging that the collision which he asserted resulted in personal injuries to himself was caused entirely by Bois' negligence. He ruled, however, that Azzopardi was not estopped from contending that the extent of his contributory negligence for his bodily injury sustained as a result of the accident should be reduced from that found by the learned Magistrate. At p 188, his Honour said:-

"It is not difficult to imagine cases where
in relation to property damage suffered by a
plaintiff the only ground for a finding of
contributory negligence might be that the
damage was contributed to by reason of a
breach of duty of care to the defendant.
Whereas in relation to personal injuries
suffered by a plaintiff there may also be a
failure by the plaintiff to take reasonable
care for his own safety."

10. He gave two examples to illustrate his proposition. The first related to a failure by a plaintiff to take reasonable care for his own safety in not using a safety belt, a failure contributing to his injuries. The second was where a plaintiff's injuries were aggravated because he was negligently driving his car with his elbow or some other part of his body extending outside the car. His Honour then said:-

"Such examples serve, I think, to show that
the issue by what amount is it just and
equitable that property damage should be
reduced, having regard to a plaintiff's share
in the responsibility for such damage, cannot
be treated as the identical issue which
arises when the question is by what amount
damages for personal injuries should be
reduced, although the damages in each case
have resulted from the same collision."

11. In Bollen v. Hickson (1980) QdR 327, the plaintiff brought an action in a Magistrates Court for damages in respect of damage to a motor vehicle. The defendant counter-claimed for damages in respect of damage to his. The Magistrate found both negligent, apportioning liability as to 15% against the plaintiff and as to 85% against the defendant. Subsequently the plaintiff sued for personal injury. The defendant pleaded the Magistrates Court judgment and contended that the plaintiff was estopped from denying that she was guilty of contributory negligence and that her share of responsibility for the damage was 15%. Connolly J. held that no issue estoppel arose because (and I quote from the headnote):-

"(i) the duties which the plaintiff and the
defendant owed to each other as the
ingredients of the cause of action and the
defence in the former and in the present
action were not identical and only if the
duties were identical would a finding in the
former action of a breach or breaches of
those duties be conclusive in the second
action; and

(ii) the provisions of s.10(1) of The Law
Reform (Joint Tortfeasors, Contributory
Negligence and Division of Chattels Act) of
1952 which required the Court to have regard
to the plaintiff's share in the
responsibility for the damage in suit in the
action, directed attention to responsibility
in the former action for the property damage
and in the present action for the personal
injuries."

At p 332, he said:-

"It would, of course, be a simple solution to
analyse the pleadings in both actions and to
see whether the issues of fact which emerge
are the same. In this case an analysis will
demonstrate that, in both the Magistrates
Court and in this court the parties have
charged each other with negligence in what I
have called the conduct, management and
control of their respective vehicles without
more. The particulars vary somewhat in the
case of each party, but that variance would
not, in my judgment, be material. The issue
estoppel is confined to those ultimate facts
which form the very ingredients of the course
of action: Blair v. Curran (supra) (at p 532
per Dixon J). Moreover it must be remembered
that it was open to each party to advance in
each action every basis upon which he or she
set up the negligence of the other in the
conduct, management and control of his or her
vehicle. The estoppel extends not only to
the points upon which the court was actually
required by the parties to form an opinion
and pronounce a judgment but to every point
which properly belonged to the subject of
litigation, and which the parties, exercising
reasonable diligence, might have brought
forward at the time. See per Wigram V.C. in
Henderson v. Henderson (1843) 3 Ha 100 at
pp 114-115, cited in Hoysted v. Federal
Commissioner of Taxation [1925] HCA 51; (1925) 37 CLR
290, at p 303. The estoppel cannot be
avoided by the ingenuity of the pleader in
the later action for the court will look at
the substance of the allegation. Cf. Jackson
v. Goldsmith [1950] HCA 22; (1950) 81 CLR 446 (at p 460
per Williams J.)."

I respectfully agree.

12. Then he also said, at pp 332-3:-

"Given the similarity of the issues of fact
raised by the pleadings in both cases, why
should the magistrate's findings as to the
relative shares of the parties in the
responsibility for the damage not be
determinative of that question in this case?
There are, I think, two reasons. The first
is, that it is not sufficient to show a
similar factual case advanced on both sides
in both actions. An analysis of the
pleadings in Jackson v. Goldsmith would have
revealed exactly the same situation. The
ultimate facts which form the very
ingredients of the cause of action on the one
hand, and the defence on the other, are the
defendant's breach of his duty of care
towards the plaintiff and the plaintiff's
failure to take due care for her own safety
and/or a breach of her duty of care for the
defendant. Only if the duties be identical
in the two cases will a finding in the former
action of a breach or breaches of those
duties be conclusive here."

13. In the result, therefore, his Honour was able to find that he was not even bound by the decision of the Magistrates Court that the plaintiff had been negligent at all. He went on to find the defendant wholly responsible for the collision.

14. The case went on appeal to the Full Court (Bollen v. Hickson (1981) QdR 249) which, by majority, upheld the appeal.

15. At pp 253-4, D.M. Campbell J., with whom Lucas S.P.J. concurred, said:-

"The doctrine of issue estoppel, so far as it
affects civil proceedings, is nowhere more
clearly stated than by Diplock L.J. in Mills
v. Cooper (1967) 2 QB 459 at pp 468-9
(quoted by Goff L.J. in his judgment in
McIlkenny v. Chief Constable of the West
Midlands (1980) 2 WLR 689 at p 712):

'A party to civil proceedings is not entitled
to make, as against the other party, an
assertion, whether of fact or of the legal
consequences of facts, the correctness of
which is an essential element in his cause of
action or defence, if the same assertion was
an essential element in his previous cause of
action or defence in previous civil
proceedings between the same parties or their
predecessors in title and was found by a
court of competent jurisdiction in such
previous civil proceedings to be incorrect,
unless further material which is relevant to
the correctness or incorrectness of the
assertion and could not by reasonable
diligence have been adduced by that party in
the previous proceedings has since become
available to him'.

The phrase 'issue estoppel' was adopted
without exception by all their Lordships in
Carl Zeiss Stiftung v. Rayner & Keeler Ltd.
(No.2) (1967) 1 AC 853. Lord Upjohn
indicated the type of question it was
necessary to answer where a party relies on a
plea of res judicata (p 942) which, as he
said, may be divided into a number of classes
or branches.

'1. Are the issues in the former proceedings
the same as in the latter? 2. Who are the
parties to the earlier proceedings? 3. Who
are the parties to these subsequent
proceedings? 4. If there is no complete
identity of parties in (2) and (3) above, are
the different parties properly described as
in privity one with another for the purposes
of the doctrine? 5. Even if the answer to
question (1) is yes, is the matter of the lis
between the parties such as to give rise to
res judicata'.

His Lordship continued (p 946):

'It goes beyond the mere record; it is part
of the law of evidence for, to see whether it
applies, the facts established and reasons
given by the judge, his judgment, the
pleadings, the evidence and even the history
of the matter may be taken into account (see
Marginson v. Blackburn Borough Council (1939)
2 KB 426).'

It is necessary now to refer back to Jackson
v. Goldsmith. It was held that there was no
issue estoppel by which Jackson was precluded
by adverse findings in a District Court
action by Goldsmith, for property damage,
from claiming contribution from Goldsmith in
a later Supreme Court action by Jackson's
passenger, White, for damages for personal
injury. The reason given was that the
proceedings in the District Court did not
determine whether there was any breach by
Goldsmith of a duty which he owed White.
Although so deciding, the view of Williams
J. was that issue estoppel could be
successfully pleaded if Jackson were later to
bring an action against Goldsmith in respect
of loss or injury to himself. His Honour
stated (p 461):

'As the result of the accident Jackson had at
one stage two possible causes of action. He
might have sued Goldsmith for any damage to
his person or property caused by the
negligence of Goldsmith. He is estopped by
the judgment of the District Court from
bringing this action'."

16. After a discussion of the case of Noall v. Middleton (1961) VR 285, D.M. Campbell J. said, at p 256:-

"His Honour did not find that there were any
differences in the issues of fact that were
litigated in both actions. It was only when
issues were expressed by him in terms of duty
in a number of other situations that he found
there were differences. The issues in the
two actions pertaining to liability were
concerned with the conduct, management and
control of the motor vehicles which
collided. The parties added an allegation of
excessive speed to the particulars that they
had supplied in the Magistrates Court. Apart
from that, the particulars supplied were
exactly the same in each action. Speed was
obviously an issue that could have been
raised in any event, and was in fact raised
before the magistrate who made a specific
finding on the subject. Virtually it was the
same contest over again."

17. I can see no relevant difference between the issues litigated in the first action and those sought to be litigated in this. As in Bollen v. Hickson:-

"The issues in the two actions pertaining to
liability (are) concerned with the conduct,
management and control of the motor vehicles
which collided."

The contest seems to me to be exactly the same or, if not, a contest on assertions by the plaintiff which are the same in essence as were the essential elements in his defence in the previous civil proceedings between the parties. A court of competent jurisdiction, from whose judgment no appeal was taken, has found that he was negligent in a particular proportion and indeed it is not suggested that any "further material which is relevant to the correctness or incorrectness of the assertion and could not by reasonable diligence have been adduced by (him) in the previous proceedings has since become available to him". Mills v. Cooper (supra). In my opinion, therefore, the plaintiff is estopped from contending that his responsibility for the accident should be found to be other than what has previously been decided.

18. I should point out that the defendant raised the question of issue estoppel at the beginning of the hearing. It was not raised on the pleadings. Counsel for the plaintiff took no objection to this course and leave was given the defendant to amend her defence appropriately.

19. When the plaintiff came to give evidence he limped to the witness box. He gave evidence about the accident. He said that afterwards he could hardly walk and was taken to Woden Valley Hospital where he was treated for other, minor, injuries. An x-ray of his knee was taken. An elastic bandage was applied. There was some swelling. He had four days off work. He was able to move around but much of the time he spent sitting down with his leg on a cushion. He went back to work and continued as a courier driver for Australia Post. He found that he was limping and that his leg was sore and clicked as he walked. Eventually, on 1 August 1980, he saw Dr John Calder, an orthopaedic surgeon, at the request of Dr Andrew Brook. Dr Brook was not called to give evidence.

20. Dr Calder performed an arthroscopy and an arthrotomy. I will refer in more detail in due course to the reports which he made and which were tendered in evidence. After the surgery the plaintiff was in hospital for 10 days before being allowed to go home. His knee was bandaged and he used crutches. After a while he was able to walk but was off work, he said, all told for about 6 1/2 months. He said that there was no healing and that the knee was painful all the time. He returned to work as a courier driver and found that he was not too good at lifting. There were no light duties available in the courier job. In March 1981 he began to work in the customs section unwrapping parcels. There was, he said, a fair bit of lifting involved. He was able to continue at that work for a while but the pain began to increase. He did some work as a mail sorter before he finally left work. Eventually he stayed at home until he could see a Commonwealth Medical Officer. He had an interview with one on 16 March 1983 and was subsequently retired because of ill health. Drugs by that time had become something of a problem and he took more of a medication called Capadex than he should have.

21. In May 1983 he retired to the village of Coramba, some 15 kilometres to the northwest of Coffs Harbour. He has not worked since. He said that he goes to Coffs Harbour three times a week for physiotherapy and to do some shopping. He suffers continuing pain in the knee. He has been looking for work but the work must be light work. He was and is hoping to tender successfully as a mail carrier but so far the opportunity for this has not arisen. He said he is able to mow his lawn by sections and to do some gardening but that he gets pain after working. He can drive for a while but not for too long. He has to be careful with lifting. He can walk to the post office and back when he feels OK. If he locks his knee before he walks in a way which he demonstrated in Court he has no difficulty. He considers that he has upset his family because of the moodiness occasioned by the pain.

22. In cross-examination he agreed that he did a newspaper run around the Coramba area. It involved the delivery with his son of 105-135 papers on Wednesdays, Fridays and Saturday mornings. The papers were placed on verandahs out of the rain. He had considered engaging in businesses of various kinds, all of which would have involved him in some degree of physical effort.

23. As I understood the plaintiff's case, he was saying in sum that he was totally incapacitated for any but light work, that the sort of light work which would suit him would be that of a mail carrier involving driving a four-wheel drive vehicle into the mountains and that he was unable to do work as a courier driver or as a mail sorter.

24. Dr Calder saw the plaintiff first on 1 August 1980. He walked with a slight limp. There was no fluid in the joint and the quadriceps muscles were satisfactory. The range of movement in the knee was normal. There was a click at 30 degrees of flexion which was painful. He subsequently performed arthroscopy and arthrotomy. At arthroscopy the knee appeared normal although the medial facet of the patella was not well seen. When examined on arthrotomy it was found to be normal although there was an area of depression on the medial femoral condyle which may have been caused by a button under the dashboard striking the knee and causing a localised crush fracture. The cartilage overlying it was however, normal and what was seen could well have been a normal anatomical variant.

25. Reporting on 14 October 1980 following the operation, Dr Calder said that the plaintiff made very slow progress but was able to say at that point that though his knee was still painful under the patella it was at last starting to return towards normal. He hoped that the plaintiff would be fit to return to work in three weeks time. He gave his opinion as follows:-

"Despite arthrotomy and arthroscopy I have
been unable to demonstrate any unequivocal
pathology in this man's knee. His symptoms,
however, date from the time of the accident
and it is possible, though unlikely, that I
have missed a minor lesion. Certainly there
is no gross pathology in this knee, and
because of its lack I would expect that his
function will return to normal."

26. He saw the plaintiff again on 31 October 1980 when his pain was considerably improved although there was a moderate degree of quadriceps wasting and he was unable fully to flex his knee. Dr Calder's prognosis remained unchanged.

27. Dr Calder examined him again on 9 April 1987. He found slight wasting of the quadriceps muscle, acute and inordinate tenderness over the inferior half and the medial side of the patella with no fluid in the joint. There was a full range of movement but acute and severe pain on full flexion with slight patello-femoral crepitus. The retro-patellar joint surface was tender. All the ligaments appeared clinically normal and he could not detect any meniscal pathology. X-rays of the patellae showed loss on the right side of bone density and slight disorganisation of the trabeculae on the medial side with evidence of early degenerative change. He noted that the plaintiff had been undergoing physiotherapy three times a week since 1982 but could see no justification for continuing with it. Dr Calder's clinical assessment of the plaintiff's knee was not in keeping with his expressed symptoms. Although there was evidence of slight muscle wasting, the plaintiff had a full range of movement. He thought that the tenderness he had was more than one would routinely see on a knee examination and that although the x-ray findings indicated some degenerative change the level would be compatible with a satisfactory working life in most occupations.

28. On 16 September 1981 the plaintiff was examined on behalf of the defendant by Dr Richard Vance, an orthopaedic surgeon. Reporting on 18 September 1981 he gave the following opinion:-

"This man injured his right knee in March of
1979. The knee is still weak and tends to
ache and swell. I do not know what the
precise diagnosis is but there is really no
evidence of any persisting internal
derangement at the present time. I think,
however, that the prognosis must be guarded
and that I rather think the present situation
will persist more or less indefinitely. By
that I mean I do not think that deterioration
is likely nor do I think that he will regain
full function in the joint."

29. He reviewed the plaintiff on 13 August 1985 and his opinion then was as follows:-

"This man sustained a relatively trivial
injury in 1979 to his right patella. There
is no evidence of any secondary complications
such as arthritis. The wasting of the thigh
muscle is the only significant clinical sign
persisting. I feel this indicates a lack in
desire to recover function in the limb. In
my view this man would be quite capable of
working in most ordinary jobs and in
particular would be quite capable of sorting
mail, and if he so wished driving a courier
vehicle."

30. On 2 March 1982 Dr Shihoff, the plaintiff's general practitioner, referred him to Dr Kitchin, another orthopaedic surgeon, for further opinion in relation to the condition of his right knee. Dr Kitchin noted that on physical examination "one was impressed by his over-reaction to examination". He said that extension of the knee was exquistely tender over the range from 30 degrees to 0 degrees. He thought that the plaintiff had knee pain which was retro-patellar in origin. He thought further surgery was not indicated, that the plaintiff's present disability was permanent and he did not feel that further physiotherapy would resolve the problem. He thought the plaintiff to be restricted in his capacity for employment with Australia Post. He did not expect any significant improvement nor any deterioration in the future.

31. Dr Mann, a consultant surgeion, examined the plaintiff at the request of his solicitors on 14 August 1985. His report of 17 August 1985 is inconclusive because he recommended that before the matter was finalised the opinion of a very senior orthopaedic surgeon in Melbourne, Mr Brendan Dooley, should be obtained. This appears not to have been done. Dr Mann had an x-ray of both knees taken. The radiologist reported that no bone or joint abnormality was seen.

32. Dr Corry, a specialist in rehabilitation medicine, examined the plaintiff. He concluded that his major disability now related to the right knee and that his symptoms were consistent with the diagnosis of chondromalacia patella. He said:-

"This has been thoroughly investigated in the
past and surgery has been performed. It
would be helpful to know exactly what was
found at that time.

The disability is moderate, and using
American Medical Association Guidelines I
would assess the permanent impairment to be
11 percent. The major disability relates to
his limited standing and walking tolerances,
particularly when walking over uneven
surfaces. Given the normal x-ray findings it
would seem unlikely that this would become
worse in the future."

33. He believed that the plaintiff would be able to perform contract mail carrying even if it were a difficult mountain run requiring a four-wheel drive vehicle. He said this even though the plaintiff's tolerance for driving manual vehicles for prolonged periods had not been tested. He thought that if that were a problem it might be solved by using an automatic vehicle or, if necessary, hand controls. He examined x-rays of both knees dated 16 August 1985 (presumably those taken at the request of Dr Mann) and said that they appeared normal.

34. He examined the plaintiff again on 16 April 1987. He then saw x-rays dated 9 April 1987. He thought the knee joints appeared to be intact but there were some sclorosis of the posterior borders of the patellae on both sides. He concluded his report by saying:-

"He has settled into a retirement life style,
which he says took him two and a half years
and has increasingly come to regard himself
as unemployable. It now seems unlikely that
he has the energies and motivations necessary
to succeed in any form of vocational
rehabilitation even if this were available to
him."

35. The plaintiff was further examined on behalf of the defendant by Associate Professor Richard F. Jones of the Department of Rehabilitation Medicine at Prince Henry Hospital, New South Wales. His conclusion was as follows:-

"(The plaintiff) has allegedly suffered right
knee injuries in an alleged motor vehicle
accident with some chondritic and
osteoarthritic changes. These have been
surgically treated and he is left with a
minor disability resulting in about 10% loss
of function in the leg. I believe that he is
employable as a delivery officer for road
mail boxes and could also be employed as a
sorter. Furthermore I regard (the plaintiff)
as being well motivated to returning to work
and I believe that such vocational
rehabilitation should be expedited."

36. Dr J. Sydney Smith, a psychiatrist, also examined the plaintiff on behalf of the defendant. He reported as follows:-

"From (the plaintiff's) description it seems
that any emotional disturbance has been of a
minor nature. He is more irritable but he
attributes this mainly to his unemployment,
his forced idleness around the house and his
financial difficulties. He does not suffer
any significant anxiety or depressive
symptomatology. He certainly does not have
any psychiatric condition that would preclude
him from working.

It is possible that the period of drug abuse
impaired his work capacity and contributed to
his being retired. He now takes only an
occasional Panadeine tablet and considers
that he is fit to run a contract mail run in
the country. Such employment should restore
his self esteem and reduce his irritability."

37. The plaintiff was not an impressive witness and I found myself unable to accept that he is as disabled as he said he was. He was evasive when cross-examined about conversations which he had apparently had concerning a market garden, suggesting that he did not know what a market garden was. I was perfectly satisfied that he did in fact know. His evasion became even plainer when his wife, giving evidence, talked freely about a market garden. He did not volunteer evidence concerning his activities on the newspaper run. A film was taken of him. Admittedly it was short and was taken on one occasion only but the evidence which he had given in chief led me to believe that he was trying to paint a picture of one who was always limping. The film showed clearly that he did not always limp. Indeed, in the film he showed no signs of a limp. I do not rely only on my own observations in this regard as I am supported by the evidence which Dr Corry, who also saw the film, gave. The plaintiff limped markedly when he came into Court. Demonstrating how he locked his knee to walk with more ease, his limp was reduced very considerably. Dr Corry, asked about the radiological changes to which he referred in his report of 1987 in comparison with the x-rays of 16 August 1985 which he had viewed, indicated that the changes which he saw in 1987 were hardly likely to have been due to the incident in 1979 having regard to the normality of the x-rays taken on 16 August 1985. Until he gave evidence before me he had not been made aware of Dr Calder's findings on operation in 1980. His evidence must therefore be suspect. In saying this I do not for one moment doubt his candid integrity.

38. I am prepared to accept that something caused the plaintiff difficulty after the accident and that it caused continuing difficulty which resulted in his seeking surgical advice and treatment. I think on the balance of probabilities I should allow for continuing pain, perhaps not as severe as the plaintiff said it was, between the accident and the surgery and for the period thereafter when he was off work. I allow something for continuing pain which I am nevertheless satisfied was intermittent only until March 1983 when he was invalided out of Australia Post. Thereafter I allow for something on account of the occasional pain which the knee causes. The pain is not, however, so great that it cannot be dealt with adequately by a moderate amount of pain relieving medication.

39. In my opinion his moodiness and irritability stems from doing nothing and I am satisfied that he is in fact well able to work, particularly as a courier or as a mail sorter or in a similar job. I accept that his job experience has been limited and I take that into account in assessing his residual capacity for work and any loss of earning capacity which he has suffered.

40. I have taken careful note of the evidence which his wife gave. I did not accept that, as he told Dr Smith, there are no problems in his marriage.

41. The difficulty that arises in assessing damages is that he has settled into a lifestyle of doing nothing. If this had been brought about as a result of the accident, of the treatment afforded him or of a mistake or mistakes on the part of those treating him, I would readily enough give damages in respect of his prolonged absence from work. But I am not satisfied that all that absence has been due to injury. Rather I think that much of it has been due to his own wish to engage in a different lifestyle. It is significant, I think, that as soon as he was invalided out of Australia Post he immediately went to live in a small village in the hinterland of Coffs Harbour.

42. There are two other unsatisfactory aspects of the physiotherapy. I can find no justification for this. It was said in opening that he had continued physiotherapy on the advice of a medical man but no evidence that this was so was tendered. Against that advice should be noted what Dr Calder said in his last report and Dr Kitchin's statement in 1982 that he did not feel that further physiotherapy would resolve the problem.

43. The second is that the plaintiff has suffered from other conditions, in particular a back condition and an ankle condition, in no way attributable to the accident. It is by no means clear that he was invalided out of Australia Post because of the condition of his knee. However, I think I should find, nevertheless, that on the balance of probabilities that was the cause of his being retired. It remains, however, an unsatisfactory position.

44. The plaintiff also suffers from asthma and takes medication for it. He was cross-examined as to absences from work after the accident. Some of these absences were not, according to the records of his employer, attributable to the injury to his knee. In particular, I was not made aware of any evidence which would support the statement in paragraph 4.2 of the actuarial report, Exhibit A, which said:-

"From examination of records of the amounts
of compensation paid to the plaintiff, it
seems he was continuously absent from work
from 17/3/82 until his invalidity retirement
on 16/3/83."

45. It seems from Exhibit A that the plaintiff was on full pay, which must have been compensation, when absent during the period from 13 March 1979 to 30 June 1982. Following the accident, as appears from paragraph 4.5 of Exhibit A, the plaintiff apparently had three days off. Then, between 1 July 1980 and 30 June 1981, he took a total of 158.81 days. This accords generally with the plaintiff's statement in evidence that he took six and a half months off and I am prepared to accept, therefore, that that time off work was due to the accident. So, too, I am prepared to accept that a further 25 days taken off before 30 June 1982 was also due to the accident although I am barely satisfied as to this. Making due allowance for tax, calculated as best I can, I allow $5,250 in respect of those periods.

46. He appears also to have been absent for the whole of the period from 1 July 1982 to 16 March 1983. While he gave no evidence of such a prolonged absence, I am prepared to accept, having regard to the way the respective cases were presented, that he did suffer loss during that period. Using the figures provided in paragraph 3.4 of Exhibit A, I think the appropriate amount to award in respect of his loss of earning capacity from 1 July 1982 to 16 March 1983 is $9,500.

47. Having considered all of the factors in this matter I think it appropriate to award a sum for past economic loss in respect of the period of two years following the plaintiff's retirement to Coramba. Admittedly, the evidence in this regard is to some degree unsatisfactory but I think it reasonable to find that for some time at least after his retirement the plaintiff was still suffering some effects from the injury to his knee. But I do not think I can, on the material before me and on the estimate I formed of the plaintiff, find any further continuing total incapacity thereafter. For the period of two years, I allow, using the figures set out in paragraph 3.4 of Exhibit A as a guide, the sum of $27,000. For those periods I calculate the Fox v. Wood component at $7,700.

48. I am not prepared to allow out-of-pocket expenses in respect of all of the physiotherapy treatment undergone by the plaintiff. I allow the sum of $3,500. This means that I allow $12,195.87 on account of out-of-pocket expenses.

49. For general damages for pain and suffering and loss of enjoyment of life I include a component on account of the very moderate continuing pain which I am satisfied the plaintiff has and award $25,000.

50. For loss of earning capacity in the future I allow, because of his very moderate incapacity, I think much less than 10% of function in his leg, the sum of $10,000.

51. I find the plaintiff's damages, therefore, to have been in the sum of $96,646.00 but having regard to his share of responsibility for the accident I think it just and equitable that that amount should be reduced by 75%. There will accordingly be judgment for the plaintiff for $24,161.50.