Christopher Mendola v Anthony Warren [1992] ACTSC 112 (6 November 1992)

SUPREME COURT OF THE ACT

CHRISTOPHER MENDOLA v. ANTHONY WARREN
No. SC 634 of 1988
Number of pages - 15
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - Contributory negligence - Motor vehicle accident - Driver and passenger affected by alcohol - Passenger unable to appreciate state of driver - Share in responsibility - No issue of principle.

Damages - Assessment - Personal injury - Motor vehicle accident - Fractured ankle - No issue of principle.

HEARING

CANBERRA
6:11:1992

Counsel for the Plaintiff: G. Clark

Instructing Solicitors: Maliganis Edwards Johnson

Counsel for the Defendant: P. O'Connor

Instructing Solicitors: Crossin Power Haslem

ORDER

1. Judgment be entered for the plaintiff in the sum of $159,862.

2. I direct that the defendant be given credit for $7,991.50.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 16 February 1986.

2. The plaintiff was born on 21 June 1965. He left school at the age of 15, and after working as a storeman for about 4 years he began an apprenticeship as a butcher at Lyneham Meat Centre. He began his studies for the trade at the TAFE, and was progressing satisfactorily, obtaining credit marks in his assessments. His master butcher gave evidence that his work was most satisfactory, and there is no doubt that he would have completed his apprenticeship in due time and obtained employment as a master butcher.

3. On Sunday 16 February 1986 the plaintiff arranged with the defendant and another friend to go for a drive in the bush. In the mid morning the party of three bought a carton of 24 cans of full strength beer and ice, and drove towards the Brindabellas. There they had a swim, played games and drank the beer. In mid afternoon, probably because the carton of beer was finished, they drove to the Cotter Hotel, where they drank some more.

4. Some time later they got back into the car, driven by the defendant. The plaintiff could not remember how much he drank at the hotel, at what time they left it, or whether the defendant displayed any signs that he was affected by alcohol.

5. At about 7.17 pm a Mr Worthington was jogging south along the Monaro Highway, approaching the intersection of the Highway with Johnson Drive. It was raining. He happened to look up, to see a station wagon on Johnson Drive strike the kerb and roll over at least three times, coming to rest on the driver's side about 40 metres from Johnson Drive.

6. He ran to the vehicle and saw the three young men in it. The plaintiff, in the back, obviously had a serious leg injury.

7. The defendant was interviewed by a police officer. His explanation for the accident was:

"We were approaching the intersection and we were going a
bit too fast so I braked and the car got into a slide and we
went onto the wrong side of the road."

8. The inevitable breath analysis which followed gave a reading of .150. He told the investigating officer that he had been drinking in the early hours of the morning, being very drunk at 5.30 am. He had slept for about 5 hours, before going to the friend's house, having breakfast, and then driving to pick up the plaintiff. He claimed to have had only 3 or 4 cans of beer at the Brindabellas, and did not admit to drinking any at the Cotter Hotel. He claimed to have been sober when driving away from the Cotter Hotel. He had had only 5 hours sleep during the 24 hours before the accident. The police officer who interviewed him about 2 hours after the accident formed the view that he was then moderately affected by liquor.

9. On 16 January 1986 the defendant pleaded guilty to a charge of culpable driving, based upon his having been under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle. The defendant was not called to give evidence in this action.

10. A finding that the defendant failed to exercise reasonable care for his passenger in the way he drove his vehicle that night was not really contested. There must obviously be judgment for the plaintiff. I have set out the detail of the evidence leading to that conclusion in order to compare the fault of the defendant with that of the plaintiff in causing his damage.

11. It appears to me that on the balance of probabilities the defendant, when he got into the car to drive away from the Cotter Hotel, would have been affected by the effects of the previous night's drinking, the lack of sleep, and the beer he had drunk during the day. It is probable that during the day he had drunk a lot more than the 3 or 4 cans to which he admitted. I think that it would have been obvious to any sober and dispassionate observer who had been with him over the time that he had been in the plaintiff's company that it would be dangerous to be a passenger in a car driven by him.

12. The plaintiff, however, was not a sober and dispassionate observer. There is no evidence that he did in fact realise what condition the defendant was in when he got into the back seat to leave the Cotter Hotel. In fact he swore that he had not formed any opinion about his fitness to drive, and I accept that evidence. I also accept his answer to the next question, "Why not?", which was, "I was drunk."

13. The defence that he voluntarily consented to the risk was formally raised. It can not succeed on that evidence.

14. Contributory negligence was also raised, particularised in two ways. The first is that he knew that the ability of the defendant to drive was adversely affected. The defendant bears the onus of proving that matter. On the evidence I am not satisfied that he has done so.

15. The second particular is that by his drinking he put himself into such a condition that he was not capable of appreciating the risk involved in being a passenger in a car driven by the defendant.

16. There is no evidence that the plaintiff knew what the defendant had been doing, or what had been his state of sobriety, during the time before the defendant picked him up at his home. But he did know that he would be driven home by the defendant at the end of the day's activities. He took part in buying the carton of beer. As that was consumed he ought to have realised he might be at risk. He continued to drink to the stage that he was incapable of making a rational judgment about the risk. As a result he got in the car, and the risk eventuated. To that extent the plaintiff was at fault, and his fault contributed to his damage.

17. In comparison with the fault of the driver, however, his fault was minor. The driver knew the facts about his own condition when they set out on the day's activities. He knew, or ought to have known, what state he was in when they went to the Cotter Hotel, and when they left it to drive home. And, of course, the actual course of driving, and the failure to take care which caused the car to leave the road and overturn, was the responsibility of the defendant alone. In my judgment the plaintiff should bear one fifth of the responsibility for his damage, and the judgment in his favour will be reduced accordingly.

18. The plaintiff does not remember much about the accident. He did not lose consciousness. When he tried to get out of the car he saw that his foot was dangling loosely. The ambulance arrived and took him to Royal Canberra Hospital, and his next recollection is of waking the next morning with his leg in plaster.

19. The hospital notes record that he sustained an open dislocated Potts fracture of the left ankle. The foot was obviously deformed, and the bones visible. There was also horizontal laceration of the mid left thigh, 3 centimetres long and down to the fatty tissue.

20. The plaintiff came under the care of Dr Kitchin, orthopaedic surgeon. X-rays disclosed a fracture to the medial malleolus, and Dr Kitchin found an injury to the knee which had caused a rupture of the anterior and posterior cruciate ligaments, and a partial tear of the medial collateral ligament. He cleaned the ankle wound, reduced the fractures, repaired the ligaments, fixed the medial malleolus with screws and wires, and immobilised the knee and ankle in plaster.

21. The plaintiff spent four weeks in hospital. After his discharge the long leg cast was replaced with a below knee walking cast.

22. At home he needed a great deal of help with bathing, washing, dressing, preparation of meals and being driven to doctors and so on. That assistance was given by his mother, his stepfather and his sister.

23. By May 1986 Dr Kitchin reported that recent x-rays showed the ankle fracture to be as yet ununited. The wound over the side of the ankle was healing. Physiotherapy to the knee had begun. There was residual knee instability. Dr Kitchin expected him to be unfit for work for at least another 6 months.

24. Over the three months to mid August 1986 he had 24 physiotherapy treatments, and used an exercise bicycle at home. He was a co-operative patient, but the process was painful, and some painkillers upset his digestion, so that he sometimes had to put up with the pain. His sleep was disturbed. His 21st birthday, on 21 June, passed without celebration because of the condition of his foot.

25. On 16 September 1986 the fixation screws and wires were removed from the ankle in John James Hospital. The sutures were removed on 23 September 1986. He had 4 more physiotherapy treatments up till mid October.

26. On 16 October 1986 Dr Kitchin reviewed his condition. The knee was stable. There was already a post traumatic secondary arthritis of the ankle, with limited ankle movement and some discomfort. The arthritis condition was likely to deteriorate, and there was a high probability that an arthrodesis would be needed in the future. Dr Kitchin advised him to start looking for some sort of work other than as a butcher, one which would require less standing and walking.

27. He decided to try a warmer climate, and went to central Queensland, mining for sapphires. He stayed there for about 8 months. While there he applied for an invalid pension, and on 15 January 1987 he was examined by Dr Belonogoff, the local Commonwealth Medical Officer. The left ankle was aching a lot, and he walked with a limp.

28. Dr Belonogoff found stiffness and swelling of the left ankle, which he attributed to the osteoarthritis. He prescribed Voltaren and rest.

29. Early in 1987 the plaintiff visited his father in Melbourne, where his condition became worse, and in July 1987 he returned to Canberra and made an immediate appointment to see Dr Kitchin, who advised an arthrodesis. That seemed preferable to the plaintiff to cutting the foot off, which he had been driven to think about, and on 10 September 1987 he was again admitted to John James Hospital, where the operation was performed.

30. He spent a week in hospital, and the ankle was in plaster for about 3 months. There was a further operation to remove metal objects from the ankle, which required a further 4 days or so in hospital.

31. He was motivated to get back to work and get on with his life, but the long course of treatment depressed him, and he obtained treatment by prescriptions for Valium and Serapax and other medications.

32. In July 1986 he had tried to go back to work with his former employer, but his ankle caused too much pain. In 1988 he tried again at Wanniassa Meat Centre, but again found the long hours of standing impossible.

33. On review on 3 May 1988 Dr Kitchin found that the fusion was not yet complete.

34. He returned to Queensland. On 6 July 1988 Dr Belonogoff found the ankle wound had healed, but there was tenderness over the scar. He also found that the arthrodesis had not achieved full union, so that pain and discomfort would be expected to continue. By this time it was 2 1/2 years since the accident, and the plaintiff felt most discouraged about his condition.

35. Dr Kitchin reviewed him again on 8 November 1988. The ankle was feeling progressively stronger, but x-rays demonstrated that fusion was not yet complete. Dr Cramer's report refers to separate bone fragments lateral to the ankle joint region, and some arthritic change developing in the subtalar joint. The instability in the knee was unchanged, and would be permanent.

36. In April 1989 he obtained employment with Johnson's Farm Management at Corindi, on a blueberry farm. He began as a general farm labourer, and then drove a tractor. He was promoted to assistant foreman, in charge of 12 other workers. The project manager wrote that he obviously had difficulties with his injured leg, but was a battler who did not allow it to interfere with the carrying out of his work.

37. In March 1990 Dr Kitchin reported that the knee and ankle had stabilised. Clinically the ankle fusion was solid, though radiologically it was incomplete.

38. At about the same time Dr Keiller examined him for the purpose of giving a medico legal report. The plaintiff reported that he was sleeping well and not suffering depression. The knee was good, but ached. The range of movement of the knee was full. The ankle felt soundly fused and comfortable, but he had some difficulty in walking. Dr Keiller found a visible loss of muscle bulk in the left leg. He detected a grating sensation in the knee on movement against resistance. He assessed his permanent impairment on the AMA tables at 30 percent of the limb, and 12 percent of the whole person.

39. The plaintiff was examined by Drs McEwan and Taylor for the defendant. Their reports were not tendered, and there was no cross examination of the plaintiff's medical witnesses.

40. In March 1991, he left the farm at Corindi, to move to Queensland. After a short time on job search allowance, he obtained work in Mackay installing railway signalling equipment. It was reasonably heavy work. At Christmas he travelled to Newcastle and Sydney with his girlfriend, and found part time work. He returned to Canberra in June 1991. He has been looking for suitable employment since, but so far without success.

41. Dr McGrath, rehabilitation specialist, examined him on 21 April 1992, and Drs Keiller and Kitchin reviewed him on 15 July 1992. His condition is stable. Dr McGrath assessed a 34 percent impairment for the left lower limb, and 14 percent for the whole person. He suggested an elevated shoe on the left foot, to decrease the risk of osteoarthritis of the left knee and hip. He discussed with him a desire to do a course to qualify himself for horticultural work. There was no proper assessment of his intellectual capacity for such a course, but I think that he has an admirable attitude to overcoming his disabilities, and may well be able to handle the theoretical side of that sort of work. He demonstrated his practical ability for it at Corindi. I think it is not possible for him to return to butchering.

42. In summary, the plaintiff suffered a gross compound fracture of the ankle, a moderately severe laceration to the thigh and injury to the ligaments of the left knee.

43. In addition to the immediate treatment for the fracture he underwent further surgery on a number of occasions, to fuse the ankle joint and remove various surgical screws and wires. His left leg is shortened. The ankle joint is fused. There is a likelihood of arthritis at the knee, and a possibility of it at the hip.

44. He was incapacitated for over three years, despite his desire and efforts to get back to work. His present restrictions are permanent.

45. He will be unable to work as a butcher, a trade which he enjoyed and for which he was well suited. He may indeed find another occupation which will interest him, but it is not certain. He is now only 27 years of age.

46. I would assess compensation for his pain and suffering and loss of amenity at $60,000, of which $15,000 would relate to the future. The bulk of his pain and suffering was in the first two years after the accident, so that in assessing interest I would not halve the rate of 4 percent, but have used instead a rate of 3 percent. I award a lump sum of $9,000 in lieu of interest on the past component of general damages.

47. The out of pocket expenses totalled $15,328.11, but $7,991.50 of that has already been paid by the defendant's insurer. Because of the requirement to apportion the total judgment, I think I should include the whole amount in calculating the judgment sum, and then direct that the defendant be given credit for the sum actually paid.

48. I am satisfied that following the first operation and the fusion operation members of his family did provide him with nursing and other services for which it would have been reasonable to pay, and that the value of those services was of the order of $14,000, as set out in the Statement of Particulars.

49. It is clear from what I have set out above that in my opinion the plaintiff has not, since the accident, been capable of returning to work as a butcher, and that he never will be. I am not therefore persuaded by the forceful arguments of counsel for the defendant that there should be no award for past economic loss after mid 1988. But part of the reason why he has been out of work for part of the time since March 1991 has been his own personal choice to move from one place to another. On the other hand, what is being measured, even in the past, is a loss of income earning capacity, of which the actual loss is a measure. The evidence supports the assumptions on which the figures used in Table A of the Statement of Particulars were based.

50. But those figures are gross figures. It is not possible to calculate tax on them accurately, but because the final figures is a matter of judgment anyway perhaps it is not necessary to do so. I award $35,000 for past loss of income earning capacity. Using a rate of 7 percent as an indicator, I award $16,500 for interest on that past loss.

51. For the future, it is not possible on the evidence to make a calculation. Had he not been injured he would be capable of earning about $425.00 a week nett. He is now physically capable of working, at least at the sort of work he had at Corindi, which would probably now pay about $10.00 an hour. It paid $9.75 an hour in March 1991. Again, those figures are gross, but the nett amount would be of the order of $275.00 a week. The continuing loss at present is therefore of the order of $150.00 a week. But for how long will it continue? I think it is likely that the plaintiff will better himself, and may even do as well as he would have done as a butcher, after about five years. But he will always be at a disadvantage on the labour market because of his injury. As a matter of judgment I award $50,000 for future loss of income earning capacity.

52. The total award is therefore made up as follows:
Pain and suffering $60,000

Interest 9,000
Out of pocket expenses 15,328
Griffiths v Kerkemeyer 14,000
Past loss of income 35,000
Interest 16,500
Future loss of income 50,000
TOTAL $199,828

53. The sum of $199,828 reduced by 20 percent is $159,862.

54. I direct the entry of judgment for the plaintiff in the sum of $159,862. I direct that the defendant be given credit for $7,991.50 paid by the insurer for medical expenses.

55. I will hear the parties on costs.