Gary Andrew Robbins v Darryl Edward Webb [1991] ACTSC 55 (5 August 1991)

SUPREME COURT OF THE ACT

GARY ANDREW ROBBINS v. DARRYL EDWARD WEBB
S.C. No. 697/89
Negligence - Conflict of Laws

COURT

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

CATCHWORDS

Negligence - Motor Vehicle Accident - Damages - Personal Injury - Action in Australian Capital Territory - New South Wales Accident - Limitations on Amount - Applicable in Australian Capital Territory Court

Conflict of Laws - Action for Damages - Motor Vehicle Accident - Accident in New South Wales - Action in Australian Capital Territory - Restrictions in New South Wales Legislation - Assessment of Damages - Substantive Law - Procedural Law

Motor Accidents Act 1988 (New South Wales) Part V1 S. 70, 72, 73, 79

Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41

Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 19 NSWLR 13

HEARING

CANBERRA
5:8:1991

ORDER

Judgment for the defendant.

The Plaintiff to pay the defendant's costs.

DECISION

This is an action for damages for personal injury sustained by the Plaintiff in a motor vehicle accident on 13 December 1988.

2. The accident occurred in Crest Park Parade in Queanbeyan, New South Wales, so that the question arises about the extent to which Part V1 of the Motor Accidents Act 1988 of New South Wales has effect.

3. Shortly after sunrise on that mid summer morning, the plaintiff was riding to work on his motor cycle, from his home in Lazarus Crescent, which runs off Crest Park Parade.

4. The area was then a relatively new subdivision, with houses under construction in Crest Park Parade. At a point shortly before the scene of the accident, the plaintiff was riding in a direction roughly South East. The road then bends to the left, as he was travelling, to be roughly in an East West alignment and with a slight uphill grade. The bend in the road is a curve with the change in direction being of the order of 25 degrees.

5. As he approached the curve he was travelling at about 60 kilometres an hour. He was wearing a helmet, which was described as a full face helmet with a perspex visor. The visor could be flipped up or down. As he approached the corner it was down. As he turned the corner, the combination of the direction and slope of the road was such that the early morning sun shone directly in his face. The effect was that he was unable to see through the visor. He started to slow down, and to raise the visor with his left hand, but as he was doing so he collided with the front of the defendant's vehicle, which was parked, facing in the wrong direction, on the left hand side of the road.

6. He did not lose consciousness. He was thrown to the ground, with injuries mainly to his left hip, knee and left hand. He was bleeding from his left ankle.

7. Within about half an hour he was taken by Ambulance to Queanbeyan Hospital. The hospital recorded that he appeared to have fractures of the left leg. X-ray revealed posterior dislocation at the hip, and he was therefore given some pain relief and transferred to Royal Canberra Hospital for further treatment.

8. There he came under the care of Dr. McNicol, Orthopaedic Surgeon, who listed his injuries as follows:
"1. A postero-superior dislocation of the left hip. This was treated

by closed reduction and was stable.
2. A comminuted fracture of the left posterior tibial spine and
plateau. This was treated by open reduction and internal
fixation with small fragment screws.
3. A comminuted fracture of the base of the left fifth metacarpal
which involved the joint surface. This was treated by closed
reduction and plaster cast immobilisation.
4. Laceration over the postero-medial aspect of the left ankle,
possibly involving the posterior tibial artery. This was
explored surgically, cleaned and tied off."

9. The hip operation was performed on the day of the accident. Three days later, he underwent a separate operation on the knee and the ankle laceration was explored at the same time.

10. He was not able to get out of bed until the day he was discharged from the hospital, on 6 January, 1989. At home he was practically restricted to lying in bed until mid February. He was nursed by his wife. Thereafter he gradually became more mobile, and attended physiotherapy at Royal Canberra Hospital. His wife had to drive him to and from the hospital until about the end of March.

11. His attitude to rehabilitation was positive, and in addition to the constant physiotherapy he went swimming regularly. He was sufficiently recovered for his wife to be able to return to work at the beginning of April.

12. When Dr McNicol reviewed him on 17 April his hip was satisfactory, though with 5 to 10 degrees of fixed flexion. His left knee showed 40 degrees of fixed flexion. His left fifth metacarpal showed some rotation and finger overlap when making a fist.

13. He was able to return to work to perform clerical duties on 1 May 1989. By that time he no longer needed the crutches, but he was using two walking sticks.

14. At the time of the accident he had been employed as a carpenter by a firm which was erecting internal partitioning at the National Convention Centre. That work finished about the middle of July 1989. By that time he was able to walk with one stick. His little finger still folds inward as he makes a fist with his left hand.

15. He then obtained a supervisory position with another construction firm after about two weeks. That job lasted until about mid September 1989, when the work ran out. By then he was walking without a stick, and without much pain.

16. His efforts to find work locally were not successful and he decided to purchase the franchise of a home maintenance business in Cleveland, a suburb of Brisbane. He and his wife and daughter moved to Queensland at the beginning of 1990. He was able to do the light carpentry work involved, but he would have been, and still remains, incapable of doing the work of ordinary house building carpentry.

17. The franchise business was not very successful. He was making a gross profit of only about $300 a week. When the franchise was due for renewal after 6 months, he decided not to renew, but to set up in business on his own account, which he did, in partnership with his wife, in July 1990. By that time, according to his evidence, his physical condition was stable.

18. Dr McNicol reviewed his condition in April 1991. The hip clicks on occasions, but is painfree. He could not fully extend the knee, and it was painful after a heavy day's work. The knee gives way occasionally. His little finger on the left hand catches sometimes in activities such as changing jeans. His ankle swells from time to time. Dr McNicol measured the loss of flexion at the knee joint at 30 degrees. At about the same time, Dr Roebuck examined him for the defendant. He found a fixed flexion deformity of 10 degrees and a loss of 15 degrees of abduction at the hip joint. His knee flexion ranged from 20 degrees at fixed flexion to a loss of 20 degrees of flexion. He has lost 15 degrees of dorsiflexion in the left ankle, and there is a scar over the site of the laceration. On the AMA Guide, he estimated a 31% permanent functional loss of the use of the left leg. He is permanently fit only for light sedentary and supervisory duties. No operative treatment would be useful or called for.

19. Obviously, in terms of s. 79(1), his ability to lead a normal life is significantly impaired by the injury.

20. Counsel for the plaintiff has submitted that the subject matters dealt with in sections 73 and 79 of the Motor Accidents Act 1988 relate to the quantification of damages, not to the existence or absence of particular heads of damage, and are therefore matters of procedure to be governed by the law of the Australian Capital Territory, and not matters of substantive law to be governed by the law of New South Wales.

21. The necessity to draw a distinction between substantive laws on the one hand and procedural or adjectival laws on the other when dealing with their operation in diverse law districts in Australia was reaffirmed in Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41. See for example per Brennan J. at 119, Dean J. at 135-136, Dawson J. at 146 and Toohey J. at 170.

22. The question is whether the matters dealt with in the relevant subsections of the Motor Accidents Act 1988 are matters of substantive or procedural law.

23. On the other hand, Brennan J. at 119, referred to the problem of quantifying damage as being a source of apparent anomaly in the application of the common law principles. He states boldly that the lex fori, not the lex loci, governs "the quantification of damages".

24. Mason C.J., however, at 79 said, "I reject the notion that the principles according to which damages for personal injury are to be assessed is a matter of procedure. It would be artificial to regard that question as one of adjectival or procedural law. The measure of damages is plainly a question of substantive law".

25. What was in issue in that case was not merely the quantification of damages. As Brennan J. points out at 120, "This case turns on whether the kind of civil liability claimed is a kind admitted by the law of the Northern Territory". It is not therefore direct authority on the questions I must decide.

26. The problem is not to be solved as if the phrase "quantification of damages" were some statutory concept, to be fitted neatly into, or excluded obviously from, some other precise statutory distinction between procedural and substantive law.

27. In Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 19 NSWLR 13 there was a discussion about a statutory defence of a limitation period, which traditionally would have been held to be procedural. The difficulties of categorisation were dealt with by Kirby P. at 23-5, Mahoney J.A. at 27-8 and Hope AJA at 33-6. Although Mahoney J. had his doubts, he was not prepared to dissent from the view of the majority that the relevant provision was substantive.

28. So far as interest is concerned, I think that the structure of s73 provides the answer. Any right that an injured person subject to the provisions of the Act might have had to interest at common law is extinguished by s73(1). Any interest recoverable by such a person is recoverable pursuant to a statutory right, given by, and subject to the conditions set out in, s73(2).

29. So far as the aspects of the determination of non-economic loss, dealt with in s79 are concerned, there are a number of considerations that to my mind, tend against the plaintiff's submissions.

30. The first is that s70 provides that a Court shall not award damages to a person contrary to the provisions of Part V1 of the Act.

31. Such a provision, together with the other provisions of the Part, determine the substance of whether the plaintiff will recover or not. The provisions of Part V1 are therefore, in any relevant sense, matters of substantive law, and not procedural law. The second is that I most respectfully agree with Mason C.J. that the measure of damages is now a question of substantive law.

32. The third is that I respectfully adopt the approach of Hope AJA in Byrnes (supra) at 33, where, after discussing Breavington v Godleman he continued,

"The judgments of the members of the Court arrived at this
conclusion in varying ways, but all held that the law of the lex
loci delicti, that is Northern Territory, and not lex fori, that
is the law of Victoria, applied as regards the damages which the
plaintiff might recover. An approach adopted by some members of
the Court was to adapt the principles of private international
law previously applied in such a case to the requirements of the
Federal system such as exists in Australia, in order, inter
alia, to prevent forum shopping. For this purpose, even if
principles as to damages were part of procedural as opposed to
substantive law for ordinary private international law purposes,
they were to be regarded as part of the substantive law in the
adaption of those principles to the States and Territories of
Australia."

I therefore hold that I am required to apply all the relevant provisions of Part V1 of the Motor Accidents Act 1988 (NSW) when assessing damages in this case.

33. Taking account of the severity of the original injury, the extent of his convalescence, and the degree of interference with his quality of life over his expected life span, I would assess his non economic loss as being one fifth of a most extreme case.

34. The maximum amount prescribed for the purpose of s79(3) is $192,600. That gives a primary amount for non economic loss of $38,250. That amount exceeds the sum of $16,050 which is prescribed for the purposes of s79(4).

35. The amount to be deducted pursuant to s79(5) is $16,050. The resulting award for non economic loss is therefore $22,470.

36. The out-of-pocket expenses are agreed at $14,342.90. Costs of transport for physiotherapy treatment are agreed at $619.24. The costs of child minding incurred because the plaintiff's wife was forced to return to work were not disputed at $1,558.00.

37. There was a claim for the value of domestic services which would have been recoverable at common law, but they were provided for less than 6 months, and the claim is therefore excluded by s72.

38. A claim under the principles of Fox v Wood is also not contested at $2,215.00.

39. The plaintiff has had less income between the date of the accident and the present than he would have had if he had continued in the job that he was in on that date.

40. But it is not possible to attribute all of that loss to the accident, or to identify with any attempt at precision, what part of it is.

41. He continued to be employed until the job ran out. He was probably motivated and fitted for supervisory work in any event. He may well have attempted the franchise type of activity, with equal lack of success, even had he not been injured.

42. Counsel for the defendant conceded that there must be some compensation for loss of earning capacity, as I understood him, both past and future, but that it would not be of any great magnitude.

43. Counsel for the plaintiff submitted that he may well have been going to succeed in business, but that the accident has impeded his progress by a number of years, and that his physical disability must limit his employability to some extent.

44. That is true, but the problem is to quantify the extent to which that loss of capacity has resulted or will result in economic loss to him.

45. As a matter of judgment I would award the sum of $15,000 as compensation of loss of income earning capacity both past and future.

46. There was no suggestion that any of the conditions set out in s73 have been fulfilled, so as to justify an award of interest on such part of that sum as might relate to the past.

47. If the plaintiff is entitled to judgment, therefore it would, in my view, be for a total sum made up as follows:

Non economic loss $22,470.00
out-of-pocket expenses $14,347.90
Transport $ 619.24
Child Minding $ 1,558.00
Fox v Wood $ 2,215.00
Loss of Income earning
capacity $15,000.00
Total $57,210.14

48. On the issue of liability the essential question seems to me to be whether the defendant parked his vehicle in such a position that he should have anticipated that it would be a danger to other road users.

49. In that context it does not matter that it was facing the wrong direction. Whether the part of it with which the plaintiff collided was the front, or the rear, or the trailer, its position on the road is what is important, not the direction in which it was facing, even though its direction may have been in breach of the regulations.

50. The plaintiff did not at any time observe how far out from the kerb the car was parked, nor how far from the kerb he was riding his cycle after he had rounded the bend into the sun. Constable Massih was not concerned to measure its distance from the kerb. His purpose, so far as breach of the regulations was concerned, was satisfied by the fact that it was pointing in the wrong direction. His best recollection was that the distance from the kerb to the part of the car nearest to it was between .5 and .9 of a metre.

51. Mrs Robbins had the impression that the car was not parked close to the kerb, but what she noticed was that it was the wrong way round, and she was in any event far more concerned for her husband's injuries than for any exact idea of the distance of the car from the kerb. However, her estimate was approximately a metre.

52. The defendant had no reason to park any great distance from the kerb. I do not think that the hypothesis put to him by plaintiff's Counsel, that he would have had to swing the front of the car out to get the trailer close enough to the kerb, has any validity in theory or any support in the evidence.

53. The defendant claimed that he was concerned to note exactly how far his car was from the kerb, as he had just received an infringement notice which specified the offence as not parking close and parallel to the kerb. He swore that part of his tyre was on the concrete gutter. On the balance of probabilities, I would be inclined to accept the defendant's evidence.

54. But even it Constable Massih's version is accepted, and it is the next most probable, that still only puts the vehicle in a position which might reasonably be occupied by any vehicle, without there being any obvious danger to other road users.

55. I do not think that the defendant ought reasonably to anticipated that a cyclist turning the bend to travel towards his car would be unsighted by the angle of the sun.

56. The photographs in evidence, assisted by my view of the scene, make it quite clear that there was no obstruction to prevent a driver, travelling in the direction in which the plaintiff was travelling, from seeing in ample time and at an ample distance, whatever was parked where the defendant's car was parked, no matter how far from the kerb it was. There was no reason why the defendant should or could have anticipated that the plaintiff, or anyone else travelling in that direction, would not be able to see his vehicle.

57. Further the defendant did not graze along the side of the car. He collided head on with it, striking it in the area of the headlight. I am not persuaded that he would have missed it even it had been parked with its tyre entirely on the gutter.

58. In summary, I am not persuaded that there was any failure by the defendant to take reasonable care for the safety of the plaintiff which was the cause of the plaintiff's injuries.

59. There must therefore be judgment for the defendant. I order the plaintiff to pay the defendant's costs.