John Michael Aldcroft v Gavin Lance Brooks [1992] ACTSC 45 (13 May 1992)

SUPREME COURT OF THE ACT

JOHN MICHAEL ALDCROFT v. GAVIN LANCE BROOKS
No. SC 377 of 1986
Negligence - Damages - Evidence

COURT

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

CATCHWORDS

Negligence - Motor Vehicle Accident - Traffic Lights - No Issue of Principle.

Damages - Personal Injury - Motor Vehicle Accident - Leg Amputated - No Issue of Principle.

Evidence - Documentary Evidence of Facts in Issue - Maker of Statement Dead - Circumstances of Making Statement - Incentive to Conceal or Misrepresent - Not subjected to cross-examination - Weight Given to Statement - No Issue of Principle.

Evidence Ord. 1971, ss29(1), 32

HEARING

CANBERRA
13:5:1992

ORDER

Judgment be entered for the plaintiff in the sum of $159,460.00 on his cause of action for damages for personal injury.

Leave be granted to either party to apply on reasonable notice on the question of the causes of action for damage to property.

The defendant pay the plaintiff's costs.

DECISION

This is an action for damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 8 July 1984 at the intersection of Constitution Avenue and Anzac Parade in Canberra.

2. Anzac Parade is the ceremonial avenue which forms one of the main visual axes of Canberra. It consists of two carriageways running north east to south west, each of three traffic lanes, and separated by a very wide, flat, median strip. Constitution Avenue crosses it at right angles and consists of two lanes of traffic in each direction. The intersection is controlled by traffic lights.

3. The plaintiff was riding a motor cycle in a north easterly direction coming from the lake and heading towards the War Memorial. As he crossed the intersection with Constitution Avenue, a car driven by a Mr Brooks, who has since died, came from his right and collided with him, seriously injuring his leg.

4. It is obviously crucial to a decision in this case to decide what was the state of the lights at the intersection at the time of the collision and shortly beforehand.

5. In his evidence in chief, the plaintiff said that he turned into Anzac Parade from the roundabout which terminates Anzac Parade at the lake end. He said that the lights facing him were green as he came around the roundabout. As he became level with the first set of lights the set in front of him turned orange. He was in the centre lane of the Anzac Parade carriageway heading towards the War Memorial. As the lights changed he glanced to his right and saw Mr Brooks's car. He attempted to jump from the motor cycle, but his foot was caught between the car and the motor cycle as the car collided with him.

6. It is common ground that Mr Brooks had been driving from the War Memorial towards the lake, and that he had made a right hand turn out of Anzac Parade into Constitution Avenue. A statement made by him to the Police officer who investigated the accident is in evidence.

7. In it he stated,
"I approached the intersection with Constitution Avenue

with the intention of making a right hand turn into that
street. I could see that the traffic lights facing me were
red so I began to slow down. The lights then changed to
green so I commenced to turn right. As I turned I
positioned my vehicle in the right hand lane of Constitution
Avenue adjacent to the median strip which divides Anzac
Parade. I was again faced with red traffic lights. I then
drove very slowly towards the white line marked on the
roadway anticipating the lights to change green. At no time
did I cross this white line marked on the road while the
lights were red. I was about 5 metres from the line when
the lights changed to green. I then accelerated to a speed
of between 15 to 20 kilometres and commenced to cross the
intersection. As I crossed the intersection I looked to my
left and saw several cars approximately 100 metres away
travelling towards me.
I was about half way across the intersection when I saw a
person riding a motor cycle directly in front of me. I
believe that this vehicle was travelling from my left to
right. I was unable to stop my vehicle in sufficient time
and the front of my car collided with the right side of the
motor cycle. I then saw the rider of the motor cycle fall
to the ground."

8. At the bottom of the statement there is recorded that the Constable asked him,

"How long did it take for the lights facing you in
Constitution Avenue to change from red to green after
you had turned right?"

To which the answer is recorded,

"A. About 10 seconds."

There were no independent witnesses to the accident.

9. Evidence was given by Mr Wilson, an officer of the relevant department, who examined the lights shortly after the accident and confirmed that they were in proper operating condition. Mr Wilson's evidence is that the phasing of the lights was such that from the time that the light that had been red to Mr Brooks as he approached the intersection turned to green, to the time that the light that he faced after he had made his right hand turn turned to green, would be an absolute minimum of 11 seconds. That period of 11 seconds includes a safety period of 2 seconds when the lights are red to traffic in both thoroughfares. If there were no other vehicles in or approaching the intersection 11 seconds might well also be the actual time for that phase, because the phasing is set so that, if no vehicle or pedestrian actuates the lights, the controller returns to the A phase, which allows a green light for traffic travelling in Constitution Avenue, as Mr Brooks was doing.

10. It is clear that those two versions of the accident cannot possibly stand together. Common sense as well as the evidence of Mr Wilson demonstrates that if the light was green or amber to the plaintiff the light facing Mr Brooks must have been red. Mr Brooks' statement clearly claims that at no time did he cross the stop line while the light facing him was red.

11. The statement made by Mr Brooks to Constable Roland was admitted into evidence without objection based on the fact that it was hearsay, and I have assumed that the reason is that it was obviously admissible pursuant to s29(1) of the Evidence Ordinance 1971.

12. Pursuant to s32 of that ordinance, in estimating the weight to be given to that statement, I think it is relevant to note that the statement was made immediately after the occurrence of the accident, probably within half an hour.

13. It does not appear from the oral evidence whether Constable Roland spoke to Mr Brooks before or after he had spoken to the plaintiff, but I think it probable that he spoke to the plaintiff first, as he would naturally speak as soon as possible to the injured person who was lying on the ground being attended to by Ambulance officers. It is also fairly clear that the statement was written out by the Constable and then signed by Mr Brooks. The grammatical structure and sequence of the sentences in the statement is consistent with the Constable's evidence in cross-examination that it was constructed by the Constable from answers that Mr Brooks gave him to specific questions, rather than being a spontaneous and uninterrupted narrative.

14. The probable circumstances of the making of the statement therefore are that Mr Brooks was answering a series of questions put to him by a policeman who had just spoken to an injured cyclist with whom he had collided. There was no suggestion that there were any other witnesses. The policeman had no material on which to base any cross-examination or make any further investigations.

15. Mr Brooks therefore had a most obvious reason for putting forward a version of the incident that was most consistent with his innocence and there were no circumstances that might tend to make him concede or offer any information tending to prove that he had been guilty of the offence of going through a red light, and thereby causing obviously severe injury to the motor cyclist.

16. It is not necessary, in order to make that comment, that I should conclude that he was deliberately telling a conscious lie. There is nothing in the evidence that would entitle me to come to such a conclusion. It is at least a logical possibility that he had not observed whether the lights in Constitution Avenue had turned green before he passed the stop line, but assumed that they must have been green, as otherwise he would not normally have driven through them. Another logical possibility is that he looked up after the collision, by which time they were green, and assumed that they must have been green when he passed the stop line.

17. I am not able to decide that any of those logical possibilities has been demonstrated. But neither have they been excluded by any evidence outside the statement itself. That circumstance adversely affects the weight that the statement bears.

18. Mr Brooks did not say that he stopped at the lights while he was in Anzac Parade. In fact, the impression he gave is that he began to slow down because the lights were red, and they changed to green before he arrived at the intersection. He probably therefore made the right hand turn without stopping.

19. He turned into the lane adjacent to the median strip, so that he probably made the turn at a low speed, but it was at a faster speed than he would have attained had he come from being stationary at the lights. He does not say that, when faced with the red lights in Constitution Avenue, he applied his brakes. His version is that he continued towards the lights, anticipating that they would soon turn to green. On any version of the accident there were no other vehicles in the vicinity other than the plaintiff, and Mr Brooks obviously did not see him.

20. The width of the median strip is about 30 metres. Mr Brooks said that the lights changed to green when he was about 5 metres from the line. That means that he travelled about 25 metres after making his right hand turn. His estimate of the time for the lights to change was 10 seconds after he turned. Mr Wilson's evidence is that at least 11 seconds must have elapsed, but that is quite consistent with Mr Brooks's estimate of time.

21. But about 25 metres in about 10 or 11 seconds is something less than 10 kilometres an hour. It is possible that, without applying his brakes, Mr Brooks got the speed of his vehicle down to below 10 kilometres an hour, but is it likely?

22. Since the maker of the statement was dead, it was not possible to explore these or any other possibilities in cross-examination. That absence of the opportunity for cross-examination also has an adverse effect upon the weight I place upon that statement.

23. The plaintiff did not lose consciousness in the accident. He came to rest a short distance after the point of impact. He felt the pain in his knee, sat up and saw the horrific injuries that he had sustained to his leg. In his evidence in chief he said that he remembered speaking to a policeman, telling him his name and saying to him "Don't tell my mother". He was then taken to hospital where he was operated on.

24. The officer who investigated the accident, Detective Constable Roland, gave evidence. His estimate of the width of the median strip in Anzac Parade was at least 30 metres, which was not challenged, and which appears consistent with the plan in evidence. He also estimated that the distance from the roundabout at the lake end of Anzac Parade to the intersection of Constitution Avenue was about 150 yards. The intersection was particularly well lit and there were no obstructions to the vision of either of the drivers.

25. When he arrived the plaintiff was being treated by Ambulance staff. He had a short conversation with him and his evidence was that during that conversation the plaintiff was very coherent. His evidence in chief about that conversation was,

"I said, "Can you tell me what happened?" and he
replied, "I came around the roundabout, the lights were
orange, so I kept going." "

26. He recorded that conversation, he said, in his fieldbook, and accurately transcribed it into the typed statement that he later prepared.

27. That typed statement was not tendered in evidence, and neither was the page of the field book where the Constable says he recorded the conversation that he had with the plaintiff.

28. The relevant part of the cross examination of the plaintiff was as follows,

"You said to him, "I came around the roundabout"?---I
can't recall speaking to him like this, no.
The fact is that you now recall that you had come around
the roundabout?---Now? Yes.
And you said to him, I suggest, "The lights were orange so I
kept going cause I think I could make it." You said that to
him, didn't you?---No, I don't recall, no. I recall - the
only thing - I don't recall saying, "I came round the
roundabout. The lights were orange, I thought I could make
it." I recall saying to him, "I thought I was going to make
it, I thought I was going to make it." I don't recall
saying anything else than that to him.
Now of course when you say you thought you were going to
make it, that's an expression of view based upon the fact
that you thought you could beat the car across the
intersection, didn't you?---No.
When you said you thought you could make it, you thought you
could make it without a collision occurring. That's what
you were saying, isn't it?---No.
When you say you thought you could make it, in the absence
of danger, there was no problem about passing through the
intersection, was there?---I knew there was danger because
he was about to hit me. I was referring to jumping from the
motorcycle."

29. It will be noted that the statement put to the plaintiff in cross-examination is not the same as that given by Constable Roland in his evidence in chief. The words "cause I think I could make it" have been added in the cross-examination.

30. Yet the plaintiff, under cross examination, freely recalled saying to the policeman, "I thought I was going to make it." What he did not admit saying was "I came around the roundabout, the lights were orange, so I kept going." The inference that I was invited to draw is that the plaintiff was admitting to the constable that he observed the lights ahead as being orange as he straightened up after rounding the roundabout, and that the lights changed to red before, or as, he arrived at the intersection.

31. The only evidence about the plaintiff's speed as he approached the intersection is that of the plaintiff. In evidence in chief he estimated it at 40 to 50 kilometres an hour. In cross-examination he said he was in the fourth of five gears, having slowed to some extent after rounding the roundabout. As he left the roundabout he had accumulated speed to a bit more than 55 to 60 kilometres an hour in third gear, and on straightening up and changing into fourth gear he eased off to 40 to 50 kilometres an hour. He gave as his reason that he was already on the reserve tank and was driving to conserve fuel. There was nothing in the evidence that would cause me to doubt that he had that reason or that he was travelling at a moderate speed. I note that the cycle did not travel far after the impact which was from the side, a fact which is also consistent with a moderate speed.

32. The distance from the roundabout to the lights is about 150 metres. At a speed of 50 kilometres an hour a vehicle travels just under 14 metres a second.

33. It follows that the plaintiff's journey from the roundabout to the intersection took a time of the order of at least ten seconds.

34. Mr Wilson's evidence is that the yellow phase of the lights lasted only three seconds.

35. It is highly unlikely therefore that the lights did in fact change to yellow as the plaintiff was still anywhere near the roundabout.

36. If it was not the fact, why would the plaintiff say anything to suggest that it was?

37. Another approach is to consider the words he is said to have used. They are not a clear and express statement that the lights changed to orange as or shortly after he came around the roundabout. They could be said to be consistent with that meaning, but that meaning is not necessarily implicit in the words. If it was not the fact that they changed to orange while he was still back near the roundabout, why should his ambiguous words be interpreted in that sense against him?

38. I am not satisfied that Constable Roland has recounted what was said by the plaintiff at the scene with such accuracy that it should be understood as being inconsistent with the plaintiff's evidence.

39. There were four elements in what the plaintiff is alleged to have said, when one puts together Constable Roland's evidence in chief and the cross-examination of the plaintiff.

40. They are;

- he had come around the roundabout;
- the lights were orange;
- he kept going; and
- he thought he could make it.

41. Each of those elements had in fact been true, at some time. What is crucial is the time at which each was true. Even if the plaintiff did say something to the Constable in which each of those elements were present, I do not think that he put them together in such a way as to mean that he deliberately went through an orange light because he thought he could make it. The plaintiff denied saying that or meaning that, and on analysis I accept his denials.

42. About a month later, on 3 August, Constable Roland had another conversation with the plaintiff at the home of the plaintiff's father. The plaintiff had prepared a statement in order to provide his version of how the accident happened, and offered it to Constable Roland, who refused to accept it. Constable Roland then asked the plaintiff a series of questions and recorded the questions and answers. The written record of that conversation was not tendered in evidence, but the plaintiff was cross-examined about it and he did not contest the accuracy of what was put to him. During the cross-examination, he said that he had glanced at the written record on the day that he gave evidence, but that he could not remember word for word what the officer asked him at the time.

43. Counsel for the defendant then read through the whole of the series of questions and answers. He agreed at the end of that process that that was the conversation that had occurred between him and Constable Roland.

44. In that material that was put to him in cross-examination the following questions and answers occur,

"Question, "How did the collision occur?" Answer, "I
came around the roundabout. As I approached the lights, the
lights were green. I was in the intersection. The last
thing I really noticed before the impact was the light
changing to orange. Then I was hit." Question, "Is the
roundabout you are referring to the roundabout located at
the intersection of Anzac Parade and Parkes Way?" Answer,
"Yes." Question, "What was your intention as you approached
the intersection?" Answer, "To go straight ahead."
Question, "How far from the intersection were you when you
saw the traffic lights were green?" Answer, "As I came
around the roundabout, I suppose - I mean, as I entered
Anzac Parade." Question, "Where were you in relation to the
intersection when you first saw the other vehicle?" Answer,
"I didn't really see the other vehicle until he was right on
top of me." Question, "What do you mean by the term, 'right
on top of me'?" Answer, "Had actually struck my motor
cycle." Question, "Where were you in relation to the
intersection when the other vehicle collided with your
vehicle?" Answer, "I would say I was in the middle or the
centre of the intersection." Question, "Would you agree
there is a white line marked across the roadway adjacent to
the traffic lights that were then facing you on Anzac
Parade?" Answer, "Yes." Question, "Where were you in
relation to this white line when you saw the traffic lights
change to orange?" Answer, "I crossed it and was towards
the centre of the intersection."
"Question, "Did you slow your vehicle as you approached the
intersection?" "Yes." Question, "At what speed did you
decrease your vehicle to?" Answer, "From 60 to 45, 50. I
was doing less than the speed limit."
Question, "Were you concentrating on your riding?', answer,
"Yes." Question, "Can you give an opinion why the collision
occurred?", answer, "I believe that the other vehicle came
through a red light." Question, "As you approached the
intersection were you able to see that any traffic
travelling towards Civic or Constitution Avenue were faced
with a red traffic light?", answer, "I didn't really look
'cos I had the green light."

45. The difference that is said to be significant in that version relates to the exact position that the plaintiff says he was in when he observed the light change to orange.

46. In his evidence in chief he said it was as he became level with the first set of lights. His front wheel was approximately on the line that makes the intersection. He marked the plan that is in evidence accordingly.

47. In the questions asked by Constable Roland he was asked, "where were you in relation to this white line when you saw the traffic lights change to orange?" He is said to have answered, "I crossed it and was towards the centre of the intersection".

48. On strict analysis that is a different description of the point at which he made the observation. He was giving the constable a description more favourable to himself than his sworn evidence.

49. But on any of his versions the plaintiff saw the orange light before the impact. The distance from the white line to the probable point of impact is about the width of one and a half lanes in Constitution Avenue.

50. The difference between the two points, when the plaintiff was travelling at 50 kilometres an hour, would take a second or less to traverse.

51. That difference in description is not sufficiently significant to raise in my mind any doubt about the general picture that the plaintiff was painting, namely that as he arrived at the intersection he had the green light.

52. In further cross-examination he denied the suggestion that the lights changed in his direction from green to orange as he was between the roundabout and Constitution Avenue and before he reached the white line. He also denied that he accelerated the bike because he thought he would make it when he saw the lights turn to orange or that he entered the intersection against a red light.

53. During the cross-examination, in answer to a number of questions by me, the plaintiff gave the following answers,

"MASTER: As your front wheel went over that white line
- and you saw that change - you had not then yet seen the
car that hit you?---No.
What you said to the policeman seemed to imply that you
really didn't see it up until it was actually hitting
you?---Yes, as I crossed the line the lights turned orange,
I continued possibly a couple of feet, glanced, saw Mr
Brooks' car and leapt from my motorbike.
Tried to leap?---That's right. It caught my foot.
Yes, so by now from the time when you first saw it to when
it actually hit there was practically no time at all?---No.
You didn't have any chance at all of getting your foot over
on to the left-hand side of the bike, did you?---I wasn't
trying to get off like that. I was trying to leap forward
off the bike.
But you never really had any chance of getting away with
that manoeuvre, did you?---No. I thought I did, but I
didn't obviously.
That is what I was wondering. Why would you say you thought
you could make it if it is so obvious that you could not?---
As I say, that's what I thought, "Jump", as the reaction to
the situation. I mean I landed on the road. I was away
from the bike. I thought for a moment that I had made it
and I thought I was going to make it, and then I realised
that I didn't make it, and I was just lying there in
disarray.

54. That explanation by the plaintiff of his undoubted use of the phrase, "I thought I could make it" was not further challenged in the cross-examination.

55. On 23 July 1990 the plaintiff was examined by Dr Saboisky whose report includes the following sentence,

"He led me to understand that at a particular crossing
he rode his bike in a proper manner through a green light
and was hit by a car coming from his right".

56. It was suggested to the plaintiff that the description of the accident that he gave to Dr Saboisky was inconsistent with his present evidence. He was unable to recall the exact phrases that he used to Dr Saboisky. The doctor does not purport to be repeating the exact phrases, but only to set out his understanding of the description of the accident. That description of the accident was not an important part of the history that Dr Saboisky was taking, except perhaps to the extent that it was relevant that the plaintiff felt that the accident was not his fault. To that extent the purport of the description was consistent with the plaintiff's evidence, and I am not prepared to use any difference that may be detected upon detailed analysis between the doctor's perception and the plaintiff's evidence to cast doubt upon the weight that I would give to the plaintiff's sworn evidence.

57. It is perhaps relevant to note what the plaintiff said to other doctors. The only reports that purport to set out any relevant description are those of Dr Burniston, who saw him on 29 February 1988, (more than 2 years before Dr Saboisky), and Dr Robbie, who saw him more recently, on 12 June 1991.

58. To Dr Burniston he claimed that the other driver came from the right against a red light. He told Dr Robbie that the lights changed to orange as he entered the intersection.

59. Those statements of course do not corroborate his present testimony. But I think they lessen the likelihood that he attempted to give Dr Saboisky an impression that was in conflict with it.

60. I have anxiously considered the careful and forceful arguments of Counsel for the defendant, but on analysis I do not think it is accurate to say that the plaintiff has given four different accounts of the accident.

61. When the details and the circumstances of each of the accounts referred to are looked at I think that it is quite easy to understand each of them in a way which does not conflict with the plaintiff's sworn evidence.

62. There was nothing in his demeanour as a witness that impressed me unfavourably.

63. Overall, on reviewing the whole of the evidence, I think it is more probable than not that his description of the accident is reasonably accurate, and that the light facing him turned to orange at about the time that he entered the intersection. It follows that the light facing Mr Brooks was still red, and that Mr Brooks therefore failed in his duty of care to the plaintiff. There will therefore be judgment for the plaintiff.

64. It is clear on all the evidence that neither Mr Brooks nor the plaintiff saw the other until a split second before the impact.

65. I accept the plaintiff's evidence that he had his headlight on. The time of the accident was about 5.30pm in July in Canberra. The Constable's evidence is that the street lighting was on, and was of superior quality, appropriate to a prominent visual feature of Canberra City such as Anzac Parade. I also accept that Mr Brooks had his headlights on.

66. Mr Brooks said that he looked to the right, but saw only traffic some distance away. In fact the plaintiff was there, with headlight on, only a short distance away.

67. The plaintiff did not observe Mr Brooks. His car was there moving, with its headlights on. The plaintiff had the green light. His vision may have been impeded to some extent by his helmet, but he was obliged by law to wear one.

68. A cycle is more manoeuvrable than a car. Mr Brooks was only moving at a slow pace. Had he seen the plaintiff only a very short time before the collision he could have braked and stopped almost instantly. It is not clear at what distance the plaintiff was from the intersection when he should have observed, not only that Mr Brooks's car was there, but also that it was not going to stop in obedience to the lights.

69. In all the circumstances, I am persuaded that to some extent the plaintiff failed to keep a proper lookout, and that failure contributed to his damage, but, in comparison with Mr Brooks's failure to obey the red light and to keep a proper lookout, I do not think that he should bear any greater responsibility for his damage than 15 per cent.

70. There is no dispute about the physical consequences of the accident. It does not seem that the plaintiff lost consciousness. He was separated from the bike. His first thought was that he was alive and then he felt pain in his knee. He sat up and saw that his knee was broken, lay back down and then thought maybe he should check the rest of his leg. He sat up and noticed that his boot had been torn off and he could see the bones of his feet pointing in all directions. He was in shock and could not feel any pain in the foot at that time.

71. He was transferred by Ambulance to Royal Canberra Hospital where he came under the care of Dr Stubbs. The injuries were described by Dr Stubbs as, "a fracture of his right patella and a compound injury of the right tibia and fibula leading to a devascularising crush injury of the foot and distal leg." The damage was such that there was no alternative to an amputation, which was performed that evening. His fractured patella was also fixed by the insertion of wires.

72. After about two weeks, on 24 July 1984, he was discharged from the Royal Canberra Hospital to the care of Dr Farnbach at the Rehabilitation Unit at Woden Valley Hospital. He remained at Woden Valley for only one night, and thereafter attended the Rehabilitation Clinic as an outpatient. When the amputation wound had healed he was fitted with a prosthesis. The process of healing was painful and he was prescribed painkillers. He also suffered a restriction of movement at the knee because of the damage to the patella. The first stage prosthesis was fitted about three months after the accident. It took some time for the swelling of the leg to go down and for the skin of the stump to adjust to the prosthesis. After about six months he could use the prosthesis for about eight hours a day.

73. About a year later, in July 1985, he was still suffering problems with the knee, and Dr Stubbs removed the wires from the patella.

74. About three years after the accident, in August 1987, he was examined by Dr Coupland, consultant physician, on behalf of the defendant. By this time he had used approximately four prostheses. He complained of blisters and sores on the skin of the stump, scars around the knee, and backache. The doctor noticed some crepitus of the right knee joint on movement. On 29 February 1988 he was seen by Dr Burniston, a Rehabilitation specialist, on behalf of the defendant. X-ray disclosed an irregularity of the patella. The stump appeared reasonably healthy, and when wearing the prosthesis he walked with an excellent gait. He was not suffering any phantom pain.

75. In March 1990 he was working in the Northern Territory and Dr Schmidt, Orthopaedic Surgeon of Darwin, examined him for the defendant. He complained that his knee clicked and grinded and after an eight hour shift of working at a bottle shop it felt numb. The pain in the knee was preventing him from squatting, and made stairs a problem. The heat and humidity was causing recurrent small boils on the stump. Dr Schmidt assessed his residual disability from the patella fracture as being 20 percent impairment of function of the lower extremity as a whole, and the amputation as being 70 percent impairment of the lower extremity. He commented that these disabilities are real and are not going to improve with time.

76. In July of 1990 his solicitors referred him to Dr McGrath, a Rehabilitation specialist in Canberra. Dr McGrath received an impression from him of a much more positive attitude to his situation than Dr Schmidt had received. There was little difference in the physical examination. Dr McGrath assessed his impairment under the American Medical Association guidelines as being 80 percent impairment for the lower limb, which translates as a 32 percent impairment for the whole of man.

77. In addition to his obvious handicaps with respect to sport, especially those which involve running and endurance, he commented that in his belief the plaintiff had a serious handicap with respect to work in that occupations requiring prolonged standing or movement of both legs are restricted due to his loss of endurance. A suitable occupation would be one with reduced hours such as the casual bottle shop assistant that he was then employed in, or alternatively an occupation with the facility for sitting and standing in alternation and preferably under his control. He would not be fit for heavy manual labouring. It is possible that he could work a standard eight hour day in a sedentary occupation.

78. Dr Kitchin, Orthopaedic Surgeon, also examined him at the request of his solicitors in August 1990. His report does not add anything significant to the picture painted by the other doctors. He agreed that the plaintiff was then capable of employment and the type of work he was then doing was an example of those capabilities.

79. Dr Vance's report for the defendant of 25 March 1991 also does not add anything significant to the physical picture. He confirms the discomfort that the plaintiff suffers as the time approaches for a change in prosthesis. He also confirmed that the plaintiff might well develop a patello-femoral arthritis in the future which could eventually lead to the requirement of a patellectomy. This however, he said, is unlikely in the short term.

80. Obviously it would take time for a young man of twenty who suffered such an injury to come to terms with it. In July of 1990 his solicitors referred him to Dr Saboisky, Consultant Psychiatrist. He told the doctor that the loss of his leg had a devastating effect on his sense of self and on his occupational, social, recreational and personal adjustment. He claimed that he was depressed to the point of suicide for a significant period following the car accident. For the first two years he tended to deny his disability and to minimise contacts with doctors and hospitals. From being a very gregarious and popular person he isolated himself and began to doubt his social desirability. He avoided his former girlfriends because he thought that their interest in him continued out of pity rather than genuine affection. He had begun to use marijuana and alcohol to excess. He saw the period of two years after the accident as being a very dark, confused and depressed period in his life.

81. Dr Saboisky accepted that picture, and his impression was that it had only been in the previous six to twelve months that he had gradually got his life in order. There was a residual sense of social stigma because of his missing leg, but there was no current psychiatric disorder.

82. Dr Robbie, Consultant Psychiatrist, examined him in June 1991 for the defendant. He painted much the same picture to Dr Robbie concerning the two years after the accident. In summary, Dr Robbie perceived that although he had occasional feelings of depression it did not amount to an illness and there was no post traumatic stress disorder at this time.

83. I perceive the major part of the trauma that he suffered as occurring at and immediately after the accident, followed by the first two years while he came to terms with the results of it emotionally. He was twenty when the accident happened. He is now only twenty eight. I think that a proper compensation for his injury is the sum of $70,000.00 of which I would attribute $20,000 to the future.

84. Because the greater part of his suffering was towards the beginning of the period, it would not be appropriate to calculate interest on the past component of general damages by using a figure of 2%. I think that 3% is nearer the mark. In lieu of interest therefore, I award a lump sum of $12,000.00.

85. The agreed medical and out of pocket expenses are $7,837.09. It is also agreed that a sum should be awarded according to principles in Griffiths v Kerkemeyer amounting to $2,385.60.

86. It is also agreed that the present value of the future recurring cost of prostheses at the appropriate discount rate is $24,000.00. I see no reason to discount that figure on account of contingencies by anything other than the conventional figure of 15%. I therefore allow $20,400.00 for the cost of future prostheses.

87. The second main area of contention in this case has been the extent of the plaintiff's loss of income earning capacity, or more accurately, the extent to which it has been and will be productive of financial loss to him, taking into account his previous employment history and his attitude to work.

88. The plaintiff had been educated in Canberra. He did not complete year 11 and was only an average student at school. He worked for six months at a service station and then went to Darwin to stay with his sister. He moved with her to Cairns and then returned to Canberra. He began a TAFE course but did not complete it. Between 1982 and the middle of 1983 he was not in regular employment. Towards the end of 1983 he obtained a job as a kitchenhand at Parliament House, which was followed by work at the Lakeside Hotel as a kitchenhand and work in the kitchen at the ABC studios in Sydney. He came back to Canberra at about Christmas of 1983 and in March 1984 he began work as an assistant in the kitchen at the Workers' Club in Canberra. He decided to take up an apprenticeship as a chef when one became available at the club. He was working as a kitchenhand, but had not begun that apprenticeship, when the accident happened.

89. I think that it was a fair comment for Counsel for the defendant to point out that he had worked only about 13 months out of the 42 before the accident, which is not a picture of a person highly motivated to work. On the other hand he was enjoying his work as a kitchenhand and he may well have proceeded with his ambition to begin an apprenticeship and eventually to qualify as a chef, but that career path was by no means a certain one for him.

90. Four months after the accident he resumed his work as a kitchenhand, but as he told Dr Burniston, he found his footing was still unstable and decided the job was too dangerous. I think that it was reasonable for him to give it up. He then had a number of short term jobs until he found employment with a road paving firm as the driver of a roller. He held this job for five months. The job obviously involved more than just sitting at the driving wheel of the roller and it was necessary for him to mount and descent from it and help with such work as pipe laying. That job lasted for about six months. Apart from the physical difficulties of getting on and off the roller he also had emotional problems at the time and at about the end of 1987 took the opportunity to go to Darwin where he stayed with his brother. He did not work in Darwin, later looked for some work in Adelaide and then returned to Canberra.

91. In June of 1988 he went to Western Australia where he did some occasional casual work. At the end of 1988 he returned to Canberra, and in February 1989 went to Port Douglas in Adelaide where he obtained a job as a kitchenhand in which he worked for three months. He came back to Canberra in early 1989 and then went to Darwin again. After a number of jobs there he obtained a position as an assistant at a bottle shop in December 1989. He worked at that up till November 1990.

92. At the end of 1990 he returned to Canberra, for personal reasons, and apart from some short periods in Darwin where he worked for about a month at a time, he has been in Canberra since.

93. He has not had paid employment since returning to Canberra and admits that he has not been looking for it. He has discovered that he has an ability to write poetry and has been engaged in performing poetry readings, which, although emotionally satisfying, does not pay at all.

94. The parties have agreed that in all employment that the plaintiff had between the date of the accident and the date of hearing he earned the sum of $39,640.20. There was also agreement that the schedules B and C to the Particulars set out calculations that are based on correct rates of pay for a chef and a kitchenhand. Those calculations show that had he continued to work solely as a kitchenhand he would have earned $89,890.60. Had he worked as an apprentice chef, progressing normally to employment as a chef, he would have earned almost exactly the same sum. The difference therefore between the maximum that he might have earned and what in fact he has earned is of the order of $50,000.00.

95. I agree that for a substantial part of that time the reason why the plaintiff has not worked has been a matter of his personal choice, rather than the consequences of the accident. It is however, not possible to analyse the periods of time in any way which is sufficiently accurate to enable arithmetical calculations to be made. The total period is almost eight years. I think that substantial justice would be done by discounting the sum of $50,000 by 50%, and I award $25,000 for past loss of income.

96. Because of the discretionary nature of that award, and the fact that for at least substantial parts of the times that he was not working he was receiving either unemployment or sickness benefits, I do not think that justice requires the award of any interest upon that component.

97. When attempting to calculate an award for his future loss of income earning capacity I think it is reasonable to find on the evidence that he is physically capable of doing the work of a casual bottle shop attendant that he had at the hotel in Darwin between December 1989 and February 1991.

98. The figures in schedule A to the Particulars show that in the first half of 1990 his earnings averaged about $158.00 per week, and, depending on the date in February that is referred to, something of the order of more than $180.00 per week during the second half of 1990 and the beginning of 1991. Schedule B shows a nett weekly wage of $265.55 as a kitchenhand and $317.30 as a chef.

99. Depending on which figures are used the difference ranges from about $85.00 a week to about $160.00 a week. The balance of his working life to age 65 is about 37 years.

100. The present value of a weekly loss of $85.00 a week for 37 years at 3% compound interest is $99,755. The present value of $160.00 a week on the same terms is $187,774.

101. These calculations mark out the absolute outer limits of any possible award. Sums of those orders could be awarded only if it were clear that the plaintiff would have been constantly employed. That conclusion is simply not possible on the evidence.

102. On the other hand, neither is it clear that for the rest of his working life he would have always led the relatively aimless life that he had led up to the age of 20. Many young people settle down to a steady life in their twenties.

103. The types of job that he has worked in since show that he was attracted to work in food preparation, and it is quite on the cards that he might have settled into a job of that type.

104. Also, no matter what his motivation may be in the future, there will be a period of the order of four weeks each year for which he would not be able to work because of the discomfort caused by the prosthesis.

105. I understood both Counsel to submit that I should approach the assessment of this element on a purely discretionary basis, and doing the best I can as a matter of judgment I think justice would be done between the parties by my awarding the sum of $50,000 for future economic loss.

106. The total award will therefore be made up as follows:

General damages $70,000.00
Interest $12,000.00
Out of pocket expenses $ 7,837.09
Griffiths and Kerkemeyer $ 2,365.60
Future Prostheses $20,400.00
Past loss of income $25,000.00
Future economic loss $50,000.00
TOTAL $187,602.69

107. I round that sum to $187,600 and reduce it by 15% on account of contributory negligence and direct the entry of judgement for the plaintiff in the sum of $159,460.00.

108. This litigation began as a claim in the Magistrate's Court for $1,075 for property damage caused to the plaintiff's motor cycle.

109. The defendant, then Mr Brooks, filed in that Court a defence to the action and a cross claim for $3,300 for damage to his motor car.

110. The proceedings were removed into this Court by Order made on 20 March 1986, and amended to include the plaintiff's claim for personal injury.

111. There was no evidence about the respective claims for property damage, and, as I understood the discussion at the end of the submissions, there was no agreement about them either.

112. My findings on the issue of liability would, I expect, resolve any differences, but, Mr Brooks having died, the NRMA Insurance Company has been substituted as the defendant. There is no evidence about its liability for, or its entitlement to property damage, so that I am not able to determine the issues relating to property damage.

113. In the circumstances I simply make clear that the judgment that I have directed is solely in respect of the plaintiff's cause of action for personal injuries, and I grant leave to either party to apply in case the property damage claims can not be settled by agreement between the parties.

114. Unless Counsel wish to be heard on the matter I propose to order that the defendant pay the plaintiff's costs.