Adam Pilarski v Maylene Hugo Evans [1987] ACTSC 65 (17 September 1987)

SUPREME COURT OF THE ACT

ADAM PILARSKI v. MAYLENE HUGO EVANS
S.C. No. 1027 of 1985
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - accident involving motor vehicle - plaintiff policeman injured whilst on duty when removing obstruction on roadway - plaintiff's failure to keep proper lookout - contributory negligence - no new matter of principle.

Damages - plaintiff hit by motor vehicle - penetrating injury to left thigh and sciatic nerve, traction injury on right side, general bruising and lacerations to much of body - plaintiff off work since accident - unlikely to be re-engaged by Australian Federal Police on restricted duties - residual earning capacity - no new matter of principle.

Damages - taken into account that capital provided by damages award can go to mitigate the damage sustained.

Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438

HEARING

CANBERRA
17:9:1987

ORDER

There be judgment for the plaintiff in the sum of $365,914.80.

DECISION

This is an action for damages for personal injuries. The plaintiff was injured in the early hours of Sunday, 12 August 1984. He alleges, and there is no dispute, that he was struck by a Rover Sedan driven by the defendant in an easterly direction in Hindmarsh Drive between O'Malley and Red Hill. The plaintiff was a serving member of the Australian Federal Police and was on duty at the time of his injury. The plaintiff has no memory of being struck by the defendant's vehicle and the defendant did not give evidence.

2. I find the following facts established. The plaintiff commenced duty at about 11 p.m., an hour or two before his injury. He was on patrol duty with a colleague, Constable John Douglas Curtis. They had finished patrolling the O'Malley area and were proceeding easterly in Hindmarsh Drive towards Red Hill. The plaintiff was driving the police vehicle. The vehicle passed over a small crest, descended into a slight dip in the road and then, when about fifty to a hundred metres from the bottom of the dip, they noticed that some boxes were scattered across the left-hand lane and across about half of the offside lane. The plaintiff swerved to the right towards the centre of the road to avoid the boxes, drove on about two hundred and fifty metres or so, and then decided to return in order to clear the obstruction from the carriageway. This he did and brought the vehicle to a halt facing in a westerly direction immediately opposite or south of the area where the boxes were strewn. They were scattered in an area roughly circular in shape and about five metres in diameter. The plaintiff engaged the blue flashing light on the police vehicle, and left the engine running with the headlights illuminated. There were some roadworks in progress immediately to the south of where the plaintiff brought the vehicle to a halt. These roadworks were being carried out for the purpose of adding a second lane for westbound traffic in Hindmarsh Drive. Where the vehicle came to a halt it had its offside wheels about half a metre onto the bitumen road surface. The rest of the vehicle was on the gravel shoulder to the south of the bitumen. There was no artificial lighting immediately in the vicinity. The nearest street light was some five hundred metres to the west, although there was a single spotlight on a builder's shed about one hundred metres northwest of where the plaintiff's vehicle came to a halt. There were no buildings or structures anywhere near the front of the police vehicle which would have had the effect of reflecting the light from the headlights towards the centre of the roadway. Furthermore, the position of the front of the police vehicle was more or less opposite the western most edge of the area where the boxes were strewn. Hence the headlights had little effect, if any, in lighting up the road surface in the area of the boxes. The blue flashing light, however, did have some such effect. It was sufficient for the plaintiff and his colleague to see their way to remove a number of boxes and throw them into a ditch on the southern side of the roadway in the vicinity of the new roadworks. There were still some boxes remaining on the carriageway. The plaintiff went to walk across in the direction of those remaining boxes. He took three or four steps and can remember no more.

3. Constable Curtis was somewhat confused in his evidence about exactly where the plaintiff was when he commenced to walk on to the roadway. At first he said that the plaintiff was towards the rear of the vehicle at that stage, but later he corrected this saying the plaintiff walked towards the front of the vehicle when he was last seen before being struck. The plaintiff bears the onus of establishing those facts which are most favourable to his case, and I am not satisfied on the balance of probabilities that the plaintiff was in front of the police vehicle when he commenced to cross the road. If he had been in that position it is possible that he may have been illuminated by the headlights, at least when he commenced the crossing. However, in view of the vagueness of the rest of the evidence, I think that very little, if anything, turns on this aspect. At any rate, I accept that Constable Curtis was still on the southern side of the police vehicle when he heard the sound of a collision and saw the tail lights of a vehicle proceeding from a point more or less opposite the police vehicle in an easterly direction. That vehicle subsequently returned to the scene. It was the defendant's vehicle. It is remarkable that Constable Curtis was not aware of the presence of the defendant's vehicle until after it had struck the plaintiff who could not have been more than five metres away from him at the time.

4. It is also remarkable that Constable Curtis did not notice a Renault Sedan, which had been proceeding in a westerly direction, slow down to a halt very close to the plaintiff at the time he was struck by the defendant's vehicle. The Renault Sedan contained a passenger, Patricia Marjorie O'Keefe, who gave evidence. She noticed the blue flashing light on the police vehicle from a considerable distance. When she did so, the driver of the car in which she was travelling reduced the speed of the vehicle. As it approached the blue flashing light, Mrs. O'Keefe saw the silhouette of a policeman on the roadway on the northern side walking towards the centre line and towards her vehicle at an angle. The driver brought the Renault to a standstill about ten or fifteen metres from the police vehicle. Mrs. O'Keefe seems to have lost sight of the policeman just before that stage, but when the vehicle came to a halt there was what she described as "a terrific thud up against our car". She got out of the vehicle and saw the body of the plaintiff lying on the roadway in front of the Renault. She added that at the time she heard the thud she had the impression of "a sort of a dark shape going past as well". The boots of the plaintiff were found some distance from his body, one nearly eight metres to the northwest and slightly on the northern side of the centre line. The fur collar of the plaintiff's jacket was found practically on the centre line and blood marks were found on the roadway in front of the Renault.

5. Police who visited the scene for the purpose of investigation interviewed the defendant. She stated that she was travelling in an easterly direction up the hill in Hindmarsh Drive. She thought she was in the left lane, but was not sure. She heard a bump and noticed the windscreen shatter. It was only after the collision that she noticed the blue light on the police vehicle. She said that before the collision when she was driving up the hill there was "certainly no blue light". She had been to a dinner party at Gowrie where she had consumed three or four glasses of wine with dinner. She had her husband in the front seat of the vehicle with her and her children asleep in the back seat. She said that she noticed a car parked in the vicinity. She could not recall on which side of the road it was.

6. Despite the lack of precise evidence concerning the moment of collision, I am satisfied that it was the vehicle driven by the defendant which struck the plaintiff when he was on the northern side of Hindmarsh Drive in the offside lane near the centre line. I am satisfied that the defendant failed to keep a proper lookout and that she had allowed herself to become inattentive, driving home at that hour of the night, to the extent that she did not notice the obvious flashing blue light on the police vehicle which at the time of the collision was no more than twenty metres distant. She simply failed to see the plaintiff at all and an alert driver keeping a proper lookout, like the driver of the oncoming Renault, would have seen the plaintiff in sufficient time either to pull up completely or to slow down and take effective evasive action.

7. The defendant alleged contributory negligence on the part of the plaintiff. The particulars of contributory negligence pleaded were as follows:

(a) Failing to keep a proper lookout.

(b) Failing to take reasonable care for his own
safety.

(c) Failing to warn approaching motorists of his
presence on the said roadway.

(d) Standing in or about the centre of the east bound
lane of the said roadway when it was unsafe to do
so.

8. More precisely, the defendant relied upon evidence that the plaintiff failed to wear his police headgear, a white cap with chequered band, failed to wear the reflective clothing with which he had been issued and failed to carry a torch with which he had been issued. The plaintiff himself said in his evidence that he thought that the light from the police vehicle, both from the headlights and from the blue flashing light, was sufficient to allow approaching motorists to be aware of his presence. The plaintiff conceded and I find that at that hour of the night in particular vehicles were likely to be travelling on Hindmarsh Drive at a high rate of speed, and although there were no street lights in the vicinity, it was by no means assured that motorists would drive on high beam. In venturing out on to the roadway in order to clear it of the obstruction caused by the boxes, the plaintiff was of course performing a commendable public duty, but the fact was that he was placing himself at considerable risk from passing motor traffic. There was only one lane for westward bound vehicles, and the obstruction caused by the boxes which still remained on the road (and which had caused the plaintiff himself to have to swerve to the right in order to negotiate them) left very little room for traffic to manoeuvre in the vicinity. As it turned out it seems likely and I find that by the time the plaintiff had reached the northern side of the carriageway he was placed in a predicament with the defendant's vehicle approaching him from the west and the Renault approaching from the east. I am, however, unable to draw any conclusion one way or the other as to whether the plaintiff was aware of the approaching defendant's vehicle. Nor am I able to draw any conclusion as to why the plaintiff appeared to signal to the Renault as if to bring it to a halt as there was no obstruction caused by the boxes on the southern side of the roadway. However, in approaching the Renault in the way he did, the plaintiff turned his back to traffic approaching from the west, a highly dangerous manoeuvre in the circumstances.

9. In my view, the plaintiff, in attempting to clear the obstruction from the roadway without availing himself of the torch and reflective clothing which he had with him, was guilty of a failure to take reasonable care for his own safety. The collision might still have been avoided, however, if he had taken proper care for his own safety once he had got on to the roadway. In my view, he failed to keep a proper lookout for the traffic which was approaching or alternatively when he became aware of that traffic he failed to take effective evasive measures by getting out of the way. Although it is impossible to be precise about how these various factors ranked in importance in contributing to the collision, I think that taken together they establish a failure on the part of the plaintiff to take reasonable care for his own safety in the circumstances. The overwhelming preponderance of fault however lies, in my view, on the defendant who simply failed to see the plaintiff at all until after the collision. I think that it is just and equitable that the damages of the plaintiff be reduced by ten percent having regard to the respective contributions of the plaintiff and the defendant to the injuries which the plaintiff suffered.

10. I turn now to damages. The plaintiff was born on 14 November 1947 and went to school to intermediate certificate level in Sydney. After two or three unsettled years during which he commenced and terminated an apprenticeship as a fitter and turner, he commenced work in Melbourne for a company engaged in electrical contracting and he carried out work as an electrician's assistant on construction sites for a period of about fourteen years. During that time he gained considerable experience and increased his skills, but he did not gain any technical qualifications. During the latter half of the period he was working as a foreman. Despite his comparative success in the electrical contracting industry, the plaintiff maintained an interest in joining the police force. He first applied to join the then ACT Police Force in about 1966 but he was underweight. He kept applying unsuccessfully until 25 June 1979 when his weight was sufficient for him to be accepted into the then Commonwealth Police Force. That Force was soon after amalgamated with the ACT Police Force and the plaintiff became a member of the Australian Federal Police in 1981. He completed a course at the Federal Police College in 1981, was assigned to general duties and in June 1983, after four years of service, he was promoted to the rank of First Constable. In August 1984 he applied and was accepted as a candidate for examination for promotion to the rank of Senior Constable. Those examinations were due to be held in October 1984, but as a result of his injuries he could not sit for them.

11. The plaintiff married in 1968 and has three children aged 18, 14 and 11.

12. There is no dispute that the plaintiff suffered very substantial injuries. He was rendered unconscious by the collision and came to in hospital about twenty-four hours later. He was confused and apprehensive. He was in great pain. He came under the immediate care of Dr A.C. James, a plastic and reconstructive surgeon. By September 1984 Dr G. Danta, a neurologist, began regular review of the plaintiff as well. The major injuries were a penetrating injury to the back of the left thigh and a brachial plexus traction injury on the right side. Dr James operated almost immediately to tie the shredded ends of the sciatic nerve and several days later a skin graft was performed, the graft being taken from the back of the left calf. In addition to the major injuries then found, the plaintiff sustained general bruising and lacerations over much of his body, more particularly in the groin area. The plaintiff spent three weeks in hospital, the last week being in a wheelchair. He was discharged in a walking-frame but even so could not walk without assistance from his wife. The wife had attended the hospital several times daily to assist in his care and this regime continued for about a month after his discharge. By that time the plaintiff was able to attend to a few of his needs himself. He spent about four months mainly resting in the house. The major area of pain was in the left shoulder and in the left leg. There was considerable restriction of the movement of the left shoulder and the injury to the sciatic nerve in the left leg had given him an unstable ankle with resultant foot drop. Whilst he was learning to walk the plaintiff would frequently trip over his toes. When he attempted to arise from a sitting position it would take him some time to gain any control at all over his ankle.

13. Dr James had predicted that further operative treatment would be necessary and in January 1985 the plaintiff was re-admitted to the Royal Canberra Hospital and a nerve graft was performed, the donor site again being in the left calf. The plaintiff was discharged after seven days in hospital and the lower half of his left leg remained taped up for two weeks. The plaintiff found that there had been no beneficial change.

14. In March 1985 a further operation was performed by Dr James by way of a tibial tendon transfer. A tendon was transferred from the back of the left calf or ankle to the front of the foot in order to give the ankle more stability. On this occasion the plaintiff, after a week in hospital, had the lower leg in plaster for some six to seven weeks. When it was removed he found that the ankle still felt weak and stiff, but thereafter it improved. By mid-1985 the plaintiff became particularly concerned about pain in the left knee and he was referred to Dr Peter Morris, an orthopaedic surgeon. Dr Morris performed an arthroscopy on the knee on 28 December 1985 and found Grade I retropatella chondromalacia and an undamaged but lax anterior cruciate ligament. There was no damage to the meniscus. I shall return to this aspect in a moment. At any rate, Dr Morris did not think that any surgery was necessary.

15. There is little dispute on the medical questions, and the defendant did not call any evidence. It is unnecessary to recite the medical evidence in detail. Dr Danta's role appears to have been essentially an investigative one and his findings and those of Dr James and indeed of Dr Morris coincide. When examined by Dr Danta on 21 May 1986, there was marked weakness of the left biceps and left brachio-radialis muscles with diminution of the reflexes in those areas. There was also numbness over most of the left hand extending into the radial side of the forearm and upper arm to below the shoulder. In the leg there was still virtually total paralysis of dorsi-flexion of the left foot and toes and eversion of the foot. Inversion and flexion were also found to be weak and there was no ankle jerk. There was also numbness over the back of the left foot, the front of the lower leg to just above the knee and at the back of the left thigh in the area of the scarring. When last seen by Dr Danta on 15 June 1987, the findings were much the same but the plaintiff complained for the first time about headaches, which he said developed about two weeks before the examination.

16. The plaintiff was a somewhat voluble and pedantic witness. I formed the impression on several occasions during his evidence that he was wary of being trapped in giving answers which would damage his case, but on the whole I think that he was truthful. He kept saying that he had not come to the court to tell lies. His credit was damaged somewhat, however, during the course of cross-examination when it emerged that he had in years past claimed to be suffering from back pain in order to be relieved of performing police duties at Parliament House. In the end he had to concede that there was no basis at all to these complaints which had led to him being examined by the police doctor and referred to the Queanbeyan Hospital for x-rays. The plaintiff also conceded that there had been occasions when he reported sick when he merely wanted a day home from work. He justified his conduct by saying that he was following an Australian custom. It is in the light of those observations that I have considerable doubts about the plaintiff's recent complaints of headache and I come to the conclusion that if they are genuine then they are related to the tension of the court case and can be expected to come to an end at its conclusion. Apart from that, however, I am inclined to accept the plaintiff's other complaints as genuine, including his recent complaints of backache. As Dr Danta said, the backache is probably due to the altered gait brought about by the injury to the leg and would have taken some time to develop.

17. Dr Smyth saw the plaintiff on several occasions for the purpose of assessing his fitness for police duties. After thirteen weeks, when the plaintiff was regarded as totally unfit, Dr Smyth considered that the plaintiff ought be given the benefit of the doubt and he continued to certify him until May 1985. By that stage Dr Smyth had come to the conclusion that the plaintiff was not fit for any job that could be found for him within the Force. In his evidence, Dr Smyth explained that he took into account that if the plaintiff continued as a uniformed member of the Force, then it might be expected that on occasions he could be called upon in an emergency to render duties for which he was not fit.

18. The plaintiff has not worked since his injury, except for one day when he attempted to carry out work for an electrical contractor. He found that at the end of the day he was in considerable pain, and it is quite clear that he is and will remain unfit for employment in that area. That is not to say that he is totally incapable of carrying out some of the work of an electrical contractor. However, he cannot be expected to engage in employment which involves working off a ladder, working overhead or kneeling and squatting. He still has numbness in the left calf and pain and restriction of movement in the ankle and his disability in his shoulder makes it impossible for him to lift any weights much beyond waist level and he is restricted to the extent to which he can rotate his left wrist. There is increasing pain in the lower back, but I think that the plaintiff exaggerates that somewhat. I do not accept that the plaintiff had a degenerative back condition that was likely to produce symptoms without the subject injury. In the total picture the plaintiff is, in my view, incapable of holding down a job in a clerical position unless the job is such that would enable him to get up from time to time, when he found that he could no longer tolerate the pain in the ankle and back.

19. The plaintiff, before his injury, was a keen and active man about the house and also participated in recreational shooting and fishing. He still keeps up these activities to some extent. As far as gardening is concerned, however, I accept his evidence that he can now do little more than potter around the garden and heavy digging is beyond him. He helped a neighbour put up a pergola but his help was mainly supervisory. He still maintains a workshop of sorts at his home and he still carries out some maintenance on his car. He freely conceded during cross-examination that with the assistance of his friends he still does quite a lot of fishing and some shooting. In fact he is the Secretary of the fishing club at the Queanbeyan RSL Club.

20. The plaintiff sought to explain the absence of attempts to gain employment since his injury by his hope that arrangements were about to be made within the Australian Federal Police for the re-engagement on selected duties of persons who had been retired on medical grounds. It was thus that he hoped, he said, to be taken back in some clerical capacity. The defendant challenged this explanation and relied in particular on the fact that the plaintiff had not taken positive steps to be re-engaged in the Police Force until some few weeks prior to the hearing. On the whole, however, I am inclined to accept the plaintiff's explanation.

21. The real dispute in the case was not so much as to the plaintiff's capacity for work in the past, but what was likely to happen in the future. Although it is true that the plaintiff spent considerable time, a total of about two years, in desk duties within the Police Force, I do not think that there is any real possibility that he would be re-engaged on restricted duties. First there is the aspect mentioned by Dr Smyth that if he is in the uniformed branch then he may be called upon in an emergency to do something beyond his capacity. Then there is the unlikelihood of a position being found where the plaintiff could exercise his own choice as to when he sat and when he stood. It was suggested that he could carry out the work of a radio operator, but I do not think that this is so because there would be times when he would have no choice but to stay at the point of duty. Chief Inspector Bryant and Inspector Harris, both senior police officers and the latter with some knowledge of the plaintiff, gave convincing evidence of the limits of the plaintiff's abilities and prospects in the Force and it accords with my own impressions and the rest of the evidence.

22. Although the plaintiff has until now not followed any form of income-generating activity, I do not think that his earning capacity should be regarded as totally destroyed. An important factor is that he has through his own efforts become a modest but apparently successful investor in real estate. Some years ago he obtained a licence as an owner/builder and built or at least supervised the erection of a house on the south coast. This was later sold and the proceeds put into further real estate development. He has formed a company and the company owns what were described as three flats in Queanbeyan which are rented. Those premises are subject to mortgage. In addition the company has recently purchased a forty acre property outside Queanbeyan where the plaintiff intends to erect a dwelling. It is proposed that he and his family will go and live there. He said that he has always wanted to own properties and a farm.

23. Although the plaintiff's clerical skills have always been quite limited, he has the capacity to look after the affairs of the fishing club, to run a family company and to invest in a number of real estate projects. He has the capacity to supervise building projects to some extent and to carry out the less onerous aspects of home and building maintenance. He can also carry out a limited range of electrical installations and repairs. All that, I think, means that this plaintiff will be able to put the damages that he is about to receive to use in a way which will make his limited earning capacity productive. It is, of course, true that in most cases the Court is not concerned as to how a plaintiff will use the damages to which he is entitled, but when the capital provided by an award of damages can go to mitigate the damage sustained then, in my view, it is appropriate to take that factor into account.

24. It is possible to approach the assessment of the loss of future earning capacity in two ways. First, one might try to ascertain the rate of residual earning capacity which the plaintiff still commands and thereby assess the net loss of earning capacity on a periodic basis into the future. On the other hand, the plaintiff might be regarded as totally disabled and his future loss be calculated initially on that basis with a discount to allow for the contingency of his being able to generate actual income in the interim. I think that the latter method is more appropriate in the circumstances of this case, particularly when it is not really contended on behalf of the defendant that the plaintiff should not be regarded as totally incapacitated up until the present time. I bear in mind that the usual discount for contingencies is fifteen percent. In the circumstances of the present case I think this should be increased to about one-third. The plaintiff intended to work to age 60, that is to say, for a period of just over twenty more years. The present net rate of pay for a Senior Constable including likely overtime and bonuses is agreed at $480 per week. Applying the three percent discount tables, the loss over twenty years into the future approximates $380,000 and I would discount this for the contingencies already mentioned to a round sum of $250,000. As far as the past loss is concerned the parties have agreed that to 20 February 1986 the net loss was $30,810. I would regard the loss as total and continuing from then to the present date and on the rates agreed, namely $426 per week to August 1986, then $429 per week to March 1987 and $480 per week from then until now, award a further sum of $35,786. This makes a total for past loss of earning capacity of $66,596. The Fox v. Wood [1981] HCA 41; (1981) 148 CLR 438 component is agreed at $19,438.70. Out-of-pocket expenses are agreed at $12,065.85. The component for domestic care and assistance provided by Mrs. Pilarski is agreed at $5,000. I would award $45,000 for pain and suffering and loss of enjoyment of life for the past, present and future of which I would apportion $25,000 for the purpose of interest. Amounts paid by way of worker's compensation to the end of June 1987 were $49,178.95 and I would round this out to something in excess of that figure to bring it up to date so that interest is to be awarded on a net amount of $14,250. Interest on both will be awarded at fourteen percent per annum and the result reduced by half, resulting in a total figure of $8,471.45 for interest. That will be added to the damages making $406,572.00. The final adjustment is to reduce the last figure by ten percent for contributory negligence to $365,914.80 and the plaintiff is to have judgment for $365,914.80. Unless the parties wish to be heard I propose to order the defendant to pay the plaintiff's costs.