Geoffrey Leonard Spillane v Gregory Trevor Cunneen [1991] ACTSC 18 (8 March 1991)

SUPREME COURT OF THE ACT

GEOFFREY LEONARD SPILLANE v. GREGORY TREVOR CUNNEEN
S.C. No. 1310 of 1987
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master Hogan(1)

CATCHWORDS

Negligence - Motor Vehicle Accident - Intersection - Give Way Signs - Contributory Negligence - No Issue of Principle

Damages - Personal Injury - Index Finger of Right Hand - Commercial Pilot - Employed in Fishing Trawler - Loss of Income - No Issue of Principle

HEARING

CANBERRA
8:3:1991

Counsel for the Plaintiff: Mr Wilcox

Solicitors for the Plaintiff: Sly and Weigall

Counsel for the Defendant: Mr Hartigan

Solicitors for the Defendant: Abbott Tout Russell Kennedy

ORDER

Judgment be entered for the Plaintiff in the sum of $69,176.50.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 5 August 1984.

2. The plaintiff was driving a Toyota Coupe on the Barton Highway, towards Canberra, and towards the intersection of that Highway with William Slim Drive. At the intersection the Highway has two carriageways, each wide enough for two lanes of traffic, separated by a grassed median strip about ten metres wide. Traffic travelling in William Slim Drive was controlled by Stop signs at the intersection.

3. The defendant was driving a Ford Falcon along William Slim Drive, towards the intersection and in the general direction of Gundaroo, that is, from the plaintiff's right.

4. The plaintiff approached the intersection at about 100 kilometres an hour, the speed limit on that stretch of road. He noticed the defendant's vehicle crossing the carriageway which carried traffic in the opposite direction. It appeared to be slowing down, in obedience to the stop sign. As he got nearer the defendant's car came out in front of him. The front of the plaintiff's car collided with the rear left hand side of the defendant's car.

5. When the plaintiff spoke to him the defendant said words to the effect that he thought he could get across in front. The police were called. The defendant was asked by Sergeant Smeltink why he had been in an accident. He replied, "I thought I could make it." He was subjected to a breathalyser test, which recorded a reading of .09.

6. I find that the defendant was negligent in not obeying the stop sign and permitting the plaintiff's vehicle to pass in front of him.

7. A defence of contributory negligence was raised. The defendant did not give evidence. There was no evidence that the plaintiff's speed was excessive. There was no evidence to contradict that of the plaintiff that the defendant appeared to be slowing down in obedience to his obligation, until it was too late for the plaintiff to take evasive action.

8. I am not satisfied that the plaintiff failed to take reasonable care for his own safety in any way. There will therefore be judgment for the plaintiff without any deduction for contributory negligence.

9. The plaintiff was wearing a seat belt. He did not lose consciousness. He injured both his knees and his right hand. He was taken by ambulance to Royal Canberra Hospital. His hand was x-rayed, and immobilised in a plaster slint.

10. There were fractures of the second and third metacarpal heads and the proximal phalanx of the second and third fingers. He was then allowed to leave.

11. A friend later drove him back to Eden in New South Wales. On 14 August he saw Dr Quiggin, a general practitioner. He returned on a number of occasions to the fracture clinic at Royal Canberra where the cast was reduced to a slab and then to an aluminium splint.

12. The injury to his knee recovered rapidly. He suffered for a time from headaches, nervousness and shock.

13. On 4 December 1984 his general practitioner noted that flexion of the proximal interphalangeal joint was limited to 90%. There was slight deformity of the joint and tenderness on pressure.

14. In August 1985 he saw Dr Corry, rehabilitation consultant. His only complaint was that he had limited movement of the right index finger, and was unable to make a firm grip.

15. Dr Corry noted that movements of the right index finger were limited. The metacarpal phalangeal joint moved from 0 degrees to 90 degrees of flexion, the proximal interphalangeal joint from 0 degrees to 60 degrees, and the distal interphalangeal joint from 5 degrees to 60 degrees. There was a slight deformity of the proximal phalanx. He was therefore unable to reach his palm with the tip of the index finger on flexion. Grip strength, however, appeared good. Dr Corry prescribed stretching exercises, and expected further improvement.

16. Dr Corry re-examined the plaintiff on 22 May 1989. There had been no significant change in symptoms or function since August 1985.

17. Dr Corry's summary was that there had been a serious injury to the right hand which had healed well, with a slight deformity and some loss of movement. The grip strength in both hands was 51 kg. The hand is quite functional for most activities, and the main disability relates to what is more a habit than a necessity, of holding the index finger in extension when using it, particularly for power grip.

18. Dr Andrews examined him for the defendant on 31 May 1990. He described the continuing disabilities as a reduction in flexion of the index finger of about 60%, and reduction in flexion of 20% in the right middle finger. He described the restriction of finger movement as minor, and excluded the likelihood of secondary osteoarthritis.

19. The plaintiff was 29 at the time of the accident. After high school he studied economics at university, but did not graduate. He then became interested in aviation. Between 1978 and 1982 he progressed from student pilot to the holder of a senior commercial licence with instrument rating.

20. In 1980 he flew for Transwest Airlines in Coastal surveillance in the north of Australia. In 1981 and 1982 he flew as a fish spotter for Safcol Seafoods.

21. In 1982 he ceased commercial flying, and joined a fishing company called Osprey Trawling Company which operated in south eastern waters out of Eden in New South Wales.

22. The circumstances in which he left Osprey early in 1984, were to some extent disputed, but I think they were probably truthfully set out in a letter he wrote to Qantas in July 1984.

23. He had applied to Qantas for employment as a pilot in 1979 and 1980, but his experience then as a pilot was not extensive enough. He reactivated his application late in 1983 and it appears that arrangements were made for an interview on 2 February 1984. He did not attend that interview.

24. In his letter dated 3 July 1984 he explained that he had been working as Navigator Engineer in the Osprey, on the basis of being able to leave at short notice to continue his aviation career. The owner and skipper of the vessel had fallen ill. He had agreed to help take the vessel to South Australia, but was unable to leave it there, because of the owner's illness, in time to attend the interview.

25. His tax return shows that he did leave Osprey on 22 February 1984. He was then on unemployment benefits from 9 March 1984 to 19 June 1984.

26. His July letter resulted in an appointment for an interview on 31 July 1984, but his application was not successful.

27. His evidence was that he had an arrangement with the owner of Osprey that if his application was not successful he would return to the vessel.

28. However, the accident intervened within a week after the interview. He did return to Eden, however, and after his hand had healed sufficiently he returned to the vessel. His tax return shows that he was employed from 16 October 1984 to 15 January 1985.

29. The return also shows that in February and March 1985 he was engaged in an enterprise called "Spillane Aviation Enterprises" where, as a joint venture with the owner of a seafood shop in Sydney, he flew crayfish from Tasmania to the Sydney market. The enterprise did not succeed because of insufficient supplies. He returned to the Osprey, where his return shows he was employed from 21 March 1985 to 30 June 1985. His evidence is that he stayed on until 13 September 1985.

30. On the basis of that chronology I accept his evidence that the reason for his finally leaving the Osprey was not to embark upon the crayfish enterprise. It does not necessarily follow that I accept that he would have remained with the vessel indefinitely.

31. His evidence was that he found difficulty in carrying out all his duties in the vessel because of his injured hand. I think that his duties were more those of Navigator and Engineer than deckhand, but I accept that there were many occasions when he would have been required to help out with deck work, and that his habit of holding his index finger extended caused difficulty, and even occasional danger, and that both he and the skipper came to the conclusion that his hand made it reasonably necessary for him to leave.

32. He was unemployed from October 1985 until 1986. He then went into business with Mr and Mrs Egan in a fish marketing enterprise.

33. The plaintiff concedes that his income would have been higher had he returned to commercial flying than it has been in the fish marketing business. His income earning capacity since he left Osprey is therefore to be measured by reference to rates of pay as a pilot, and his case has been put on that basis.

34. I also accept the evidence of Mrs Fourter about the basis on which the plaintiff was and would have been paid had he remained with the Osprey.

35. The difficult issue is whether he would have stayed with that company had he not been injured.

36. His evidence is that he enjoyed the seagoing life. His navigational and mechanical skills were appreciated, and earned him an extra percentage share in the vessel's profits.

37. Had he obtained the position with Qantas he would have left the sea, but he claims he intended to return if his application was unsuccessful.

38. On the other hand, even after he did go back he was prepared to leave in order to undertake the crayfish venture. He returned to the Osprey when that venture failed.

39. Then, although the Osprey began to make very good profits in the 1987 and 1988 seasons, it was not very profitable during 1985 and 1986. The plaintiff was not to know during those years that the increase in earnings would be so spectacular. There might well have been periods of unemployment at the end of the tuna season, just as there was from February to August in 1984.

40. The possibility must be acknowledged that some other enterprise might well have drawn him away even had he not been injured.

41. One approach, suggested by counsel for the plaintiff, is to discount the arithmetical figure for the past loss on account of that contingency. He suggested that the discount should be modest.

42. Another would be to try to put a figure on the value of the opportunity that he had lost, as the result of the accident, to have remained with the Osprey had he wished.

43. In the view I take I do not think that very different figures would result from those approaches.

44. It is conceded that there was in fact no recoverable economic loss in 1985 and 1986. For 1987, 1988 and 1989 the amount claimed in the particulars totals $96,045.00. No claim was included there for loss after 1989, although at the hearing amounts for 1990 and 1991 to date were added. But at October 1990 no quantifiable claim was being made for future loss.

45. If the first approach is adopted I think the discount should be substantial. If the second, I do not think that the value of the lost opportunity approaches the amount claimed in the particulars.

46. I award $50,000.00 for past loss of income earning capacity. I do not consider it appropriate to award interest on that sum.

47. The future will depend upon the commercial success of the venture in which he embarked with the Egans. I do not think that there should be any award for future loss of income.

48. For his pain and suffering and disability I award $15,000.00. For interest on that sum, at 4%, I award $3,951.00.

49. The out-of-pocket expenses totalled $308.00 of which $82.50 has been paid by the defendant. I allow the balance of $225.50.

50. The total award is therefore made up as follows:
Pain and suffering $15,000.00

Interest $ 3,951.00
Loss of income $50,000.00
out-of-pocket expenses $ 225.50
Total $69,176.50

I direct the entry of judgment for the plaintiff in the sum of $69,176.50.