Pamela Joan Noyes v Bradley Ross Noyes and Gregory's (Motors) Pty Limited [1992] ACTSC 89 (4 September 1992)

SUPREME COURT OF THE ACT

PAMELA JOAN NOYES v. BRADLEY ROSS NOYES and GREGORY'S (MOTORS) PTY LIMITED
S.C. No. 329 of 1991
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - Foreseeability - Fence wire cut - Injury to bystander - Eye injury - No issue of principle.

Damages - Assessment - Damage to eye - No issue of principle.

HEARING

CANBERRA
4:9:1992

Counsel for the Plaintiff: G. Lunney

Instructing Solicitors: Crossin Power Haslem

D. B. Lewis

Counsel for the Defendant: D. Nock

Instructing Solicitors: Hunt and Hunt
I. S. Craig

ORDER

Judgment be entered for the plaintiff in the sum of $42,681.84.

The defendant pay the plaintiff's costs.

DECISION

This is the assessment of damages for personal injuries sustained by the plaintiff in an accident on 21 June 1989. The action is within the Master's jurisdiction pursuant to a consent order made by the Chief Justice on 6 March 1992.

2. The first defendant is now the plaintiff's husband. At the time of the accident he was employed as a mechanic and occasional tow truck driver by the second defendant.

3. On the evening of the accident the first defendant was instructed to tow a car out of a paddock at Majura Road, and he asked the plaintiff to go with him to help him.

4. She got into the tow truck, which he drove, and after some changes in his instructions they eventually reached the scene, at 9.30 at night.

5. A police car was already there, with signal lights on. The defendant inspected the car that had left the road, and decided that the ground was too boggy for the tow truck to go into the paddock. He therefore parked the truck at right angles to the road, with the tray that was lowered at the rear of it adjacent to the post and wire fence that was on the boundary of the paddock.

6. He then asked the plaintiff to hold a torch, while he went to cut the wires of the fence. The plaintiff stood beside the lowered tray of the tow truck, towards the rear of it. She shone the torch towards her husband, who went to cut the wire near a fence post, on the other side of the tow truck.

7. She heard two clicks and then felt something in her left eye. She put her hands up to her eyes and felt liquid on them.

8. The police officer radioed for an ambulance, which took the plaintiff to the Royal Canberra Hospital. She felt an irritation in the eye. Dr Pluschke, an ophthalmologist, was called, and he immediately operated to repair the eye under general anaesthetic.

9. The plaintiff spent about a week in hospital. She was discharged wearing a patch over her eye. She was emotionally upset, and worried about losing the sight in her eye. The eye continued to be sore, and she took painkillers for relief.

10. She wore the patch, putting drops in the eye and taking painkillers, until 20 July, when Dr Pluschke performed a further operation to remove cataracts which had formed on the eye. She spent another three or four days in hospital. She rested in bed at home for a while, and over about six or eight weeks gradually accustomed herself to such sight as she has in the eye.

11. In June 1990 Dr Pluschke reported that the plaintiff's right eye is normal, with visual acuity 6/6 without correction. The left eye corrects to 6/6 with spectacles. There is a scar on the cornea. The back of the lens is scarred. The condition of the eye was normal, without raised pressure. The condition, which he described as unilateral aphakia, does not allow the use of both eyes together wearing spectacles. I gather that they can work together better while a contact lens is worn, but that has its own drawbacks.

12. Dr Peter Anderson examined her for the defendant on 17 September 1991. He found the right eye had visual acuity of 6/6, while that in the unassisted left eye was 6/60, improving to 6/9 with a contact lens. Cosmetically, the shape of the pupil is disfigured. Her complaints of difficulty with bright light and resultant headaches were consistent with her condition. There are risks of retinal detachment and glaucoma, but they are not likely. He agreed that the risks involved in an operation to implant a lens were not warranted.

13. Dr Pluschke, in March 1992, confirmed that he advises against further operation, and agreed with Dr Anderson that she might benefit from a change to a soft contact lense.

14. She wears dark glasses outside, and is not confident of her left peripheral vision, especially when driving.

15. Before the accident the plaintiff was a keen ten pin bowler, playing four or five nights a week at one time. She has a collection of trophies from the sport. She has not been successful in her attempts to take it up again.

16. Shortly after the accident she lost her job as a receptionist. I do not take that to be claimed as a result of the accident. Although she considers that she could do the work of a receptionist she was concerned about lighting and activities in an office, and has chosen to earn income by caring for children at home.

17. She makes no claim for past economic loss. There is a claim for future economic loss. I am not satisfied that her ability to earn income has been affected to any measurable extent by the injury. Both the doctors agree that she is fit for any work where the wearing of contact lenses or spectacles would not cause problems. She had worked as a shop assistant and a receptionist. She now cares for children. There might possibly be situations of that kind which she would not choose because of discomfort from lights, but I can not assign any sum to a separate valuation of whatever diminution that might cause in her income earning capacity. For what it is worth I take the circumstance into account in assessing her general damages.

18. For her pain and suffering and loss of amenity, I would award the sum of $30,000, of which $5,000 would relate to the future.

19. For interest on the past component of that sum I would award $1,600 on the conventional basis.

20. The condition of her eye will require periodic supervision by a specialist, and replacement of contact lenses. She will continue to use medication regularly for headaches and discomfort. I do not think that she will undergo further surgery, but both doctors advert to it as a possibility. There is no evidence of any figures relating to these items on which a calculation could be based, so that I must simply arrive at a discretionary figure as a matter of judgment. On that basis I award $7,500 for future expenses.

21. The out of pocket expenses are agreed at $3,581.84.

22. If the plaintiff is entitled to judgment therefore, the total sum would be made up as follows:

Pain and suffering $30,000.00
Interest 1,600.00
Future expenses 7,500.00
Out of pocket expenses 3,581.84
TOTAL $42,681.84

23. The defendant relied upon a number of submissions in support of the proposition that the plaintiff has not made out a case in negligence.

24. The first is that the evidence does not enable the inference to be drawn that it was wire that caused the damage to her eye.

25. The plaintiff's version of the circumstances of the accident was not contradicted. The defendant did not give evidence. Dr Pluschke not only says in general terms that the injury was consistent with the mechanism of the accident as described to him, he condescended upon particularity by observing that, "some condensation of the vitreous exists along the track taken by the wire to its counterpuncture of the retina inside the eye". The plaintiff was standing near a post and wire fence. Her husband was cutting the wire. There was no foreign object which was found lodged in the eye. The hypothesis that the injury to the eye was caused by a piece of wire which sprang back when it was cut may not be demonstrated beyond reasonable doubt. But it is an inference that is rationally available, and on the balance of probabilities, in the absence of any other explanation of which there is evidence, it is an inference that I draw.

26. It is true that there is no evidence of what type of wire was on the fence. The plaintiff gave evidence that some of the wire was barbed wire, and one would expect that to be at least the top strand. But the top strand may have been already cut, and it was one of the lower strands that was cut just before the injury was caused, and there is no evidence of what type of wire that was. There was no expert or other evidence that any wire would spring whatever the distance was that would be needed to cause the injury. There was no expert or other evidence that the particular wire that had been cut would spring that distance.

27. But I think that it is a matter of common knowledge among Australian people that fencing wire is usually under tension, and it springs when cut while it is under tension. At least I think that the community would be rightly concerned if court cases were being decided by a judicial officer who was so out of touch with the real world as not to be aware of that fact. The absence of those pieces of direct evidence does not cause me to doubt the inference that I draw.

28. And if that is to be said about a lawyer, what should one expect to be the state of knowledge of a mechanic and tow truck operator, who, being available to give evidence so far as I am aware, did not go into the witness box to say that he was unaware of the tendency of wire to spring back when cut while under the sort of tension to be expected in a paddock fence?

29. I hold that the first defendant was aware of that fact, or, if he was not, that he ought to have been so aware.

30. In those circumstances, whether he adverted to the danger or not, it was foreseeable that if he did not take some steps to secure the loose end when cutting it, or do something else to prevent it from springing back, some injury might be caused to the person who was standing only the width of a truck away from him, and at the rear of the truck not very far distant from the line of the fence. By simply holding what was to become the loose end in a gloved hand he could have prevented the injury. If that were not possible, a simple warning to the plaintiff to stand out of range could have had the same effect.

31. Injury to the plaintiff was foreseeable. There is no evidence that he did anything to prevent it. I think that he probably did not advert to it, and simply started to cut the strands. One of them sprang back and hit the plaintiff's eye. He failed in those circumstances to take reasonable care for the safety of the plaintiff, and as a result she suffered the injury of which she complains.

32. I direct the entry of judgment for the plaintiff in the sum of $42,681.84.