Paul Simon Kontis v Keith Barlin [1993] ACTSC 26; (1993) 115 ACTR 11 (31 March 1993)

SUPREME COURT OF THE ACT

PAUL SIMON KONTIS v. KEITH BARLIN
No. SC134 of 1992
Number of pages - 16
Negligence - Damages - Private International Law
[1993] ACTSC 26; (1993) 115 ACTR 11

COURT

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

CATCHWORDS

Negligence - Motor vehicle accident - Narrow country road - No-issue of principle.

Damages - Assessment - Personal injury - Compound comminuted fracture lower leg - No issue of principle.

Private international law - Choice of law rules - Within Australia - Tort - Negligence - Accident in New South Wales - Action in Australian Capital Territory - Measure of Damages - Non economic loss - Procedural - Law of forum applied - Forum shopping - Basis of jurisdiction - Transfer pursuant to cross vesting legislation - Stay of proceedings pursuant to service legislation - Stay of proceedings pursuant to common law.

Motor Accidents Act 1988 of New South Wales S.79

Service and Execution of Process Act 1992 (Cth) Ss 8,15,16,20,21

Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) S.5

Supreme Court Rules (ACT) O.78 r 6

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

McKain v Miller [1991] HCA 56; (1991) 174 CLR 1

Chaplin v Boys (1971) AC 356

Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 19 NSWLR 13 at 33

Robbins v Webb ACT Supreme Court, Master A Hogan, 5 August 1991, (unreported)

James v Cowan [1929] HCA 47; (1930) 43 CLR 386 at 424

Stevens v Head High Court of Australia, 18 March 1993, (unreported)

Laurie v Carroll [1958] HCA 4; (1957-1958) 98 CLR 310 at 323

Stroud v Sovacki ACT Supreme Court, Master A Hogan, 28 January 1992, (unreported)

Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538

HEARING

CANBERRA, 3 February 1993
31:3:1993

Counsel for the Plaintiff: G. Lunney

Instructing Solicitors: J. S. O'Connor Harris and Co

Counsel for the Defendant: M. J. Cranitch

Instructing Solicitors: Abbott Tout Russell Kennedy

ORDER

THE COURT ORDERS THAT:
Judgment be entered for the plaintiff for $85,099.

DECISION

MASTER HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 18 November 1990.

2. Both the plaintiff and the defendant live in the Australian Capital Territory, but the accident happened on a road that is in New South Wales, so that some important legal issues are raised by the case.

THE ACCIDENT
3. The plaintiff went on a fishing trip with a friend, Mr Gibson, in a utility with their trail bikes in the back, to the vicinity of Piccadilly Circus in the Brindabella Range to the west of Canberra.

4. They parked the utility and rode their motor cycles into the valley, across the Goodradigbee River and then south to a fishing spot. The results of their endeavours, if any, are not in evidence. When they decided to return home they were not travelling closely together, though they had stopped to speak to each other a short distance before the scene where the accident happened. Mr Gibson had ridden off ahead of the plaintiff. He did not see the accident, and was not called to give evidence.

5. The road on which they were travelling was of graded gravel, about 3 metres wide. It was on the side of a hill, with many bends. Traffic had worn the road surface so that there were two wheel tracks straddling the approximate centre of the road, with looser gravel between and outside the two wheel tracks.

6. The plaintiff approached a sweeping left hand bend. The side of the hill rose to his left, and dropped away on his right. There were bushes growing on the hill on his left, and a stormwater channel had been formed on his left at the edge of the road.

7. In evidence the plaintiff said that he passed the apex of the corner, and began to come out of the bend.

8. As he did so he saw a Range Rover driven in the opposite direction by the defendant coming towards him. It was in the centre of the road, its wheels in the tracks that had been made by traffic. It was towing a trailer.

9. The plaintiff turned his bike to the left. He saw the defendant also begin to steer to his left. The plaintiff avoided a collision with the Range Rover, but his right leg came into contact with the mudguard of the trailer.

10. He was thrown off his bike. The defendant stopped and came to his assistance.

LIABILITY
11. The plaintiff's evidence was that as he approached the bend in the road he had changed gear. He thought he was in second gear as he negotiated the bend. He came out of the corner at about 30 kilometres an hour. He was about 20 yards past the apex of the corner when he saw the Range Rover approaching. It was then about 20 yards away. It appeared to be travelling at about 40 kilometres an hour. He was afraid of losing traction if he applied the brakes, so he backed off the accelerator and tried to turn as hard as he could to the left. The defendant also tried to turn to his left. As he passed the front of the Range Rover it "was to his left slightly, but it was still in pretty much the centre of the road". The trailer was wider than the vehicle towing it, and his leg struck the mudguard of the trailer. He claimed that he was unable to move further to his left because of the bank on his left side, the bushes growing off the side of it and the drain on the left side of the road.

12. In cross-examination he agreed that, when asked in an insurance claim form "What do you consider was responsible for causing this accident?" he wrote, "Narrow road plus poor visibility (vegetation) (over growen)" (sic). He filled in that form on 19 December 1990.

13. On 14 May 1991 he made a statement to the police. That statement seemed to me to be quite consistent with his evidence in general. When asked, "Where was the trailer when it hit you?" he replied, "It is hard to judge cause (sic) there is no centre line there but at least a quarter of the trailer I believe to be on my half of the road." Of course, if that estimate were accurate there should have been sufficient room left for him to have avoided a collision.

14. He agreed that he was aware that it was likely that other motor vehicles might be coming on the roadway around the bend and when asked, "Yet you gave yourself no opportunity to avoid the collision at all, did you?" he replied, "No."

15. The defendant gave evidence. He had owned property in the area, and had travelled on the road many times. He described it as being maintained by the electricity authority for access to their power lines. He was driving with Mr England, a passenger in the front seat of the Range Rover. He was towing a double wheeled trailer, which he described as being 6 feet 6 inches wide. He had not measured it, but agreed that it was slightly wider than the Range Rover.

16. In the direction in which he was travelling he said he had come around a left hand bend in the road and onto a straight portion. He claimed he negotiated the bend at less than 10 kilometres an hour. As he travelled along the straight he said his right hand wheels would have been between the two worn tracks on the road. Although both sets of wheels would then have been in looser gravel, he claimed that he drove in that position because of his experience on the road and the risk of encountering inexperienced drivers and cyclists.

17. As he travelled along the straight he said he was doing no more than 20 kilometres an hour. He saw the cyclist coming towards him, about 20 metres away. The cyclist appeared to him to be in the middle of the road, in the loose gravel between the wheel tracks. He estimated the cyclist's speed at 40 kilometres an hour.

18. He immediately applied the brakes and pulled as far left as he possible could. As the cyclist drew level with the front of his vehicle he claimed he (the defendant) was well over to his left, into the bushes. He believed that as the cyclist passed down the side of his vehicle the cyclist was still in the middle of the road. In the rear vision mirror he saw the cyclist's leg hit the mudguard. He thought that by then he (the defendant) had stopped.

19. Because of his slow speed, he said, the trailer had not followed in to be at the same angle to the edge of the road as the towing vehicle. It was still protruding on to the road.

20. The defendant was cross-examined about his speed. I do not think that the accident was due simply to excessive speed on the part of either driver. The road was such that a relatively low speed was obviously called for. The plaintiff estimated his own speed at 30, and the defendant's at 40 kilometres an hour. The defendant claimed that his own speed was 10, rising to 20 kilometres an hour, and the plaintiff's at 40 kilometres an hour. They are all moderate speeds, in absolute terms. The inherent probabilities, however, suggest to me that the estimates given by the plaintiff are more likely to be accurate than the defendant's recollection.

21. Mr England, the defendant's passenger, also gave evidence. He did not venture an opinion about the actual speed of either vehicle. He said that as the cyclist came around the bend he was in the centre of the road.

22. In cross-examination he expressed his assumption that the defendant's vehicle was travelling with its wheels in the two tracks on the roadway. The cross-examination continued:

"MR LUNNEY Well, you were looking around, weren't you? You were
paying attention to what was going on?
MR ENGLAND Yes.
MR LUNNEY That was where the vehicle was when you say the
motorcyclist come round the corner?
MR ENGLAND It was.
MR LUNNEY And when you first saw him he was
actually coming around the corner?
MR ENGLAND Yes, he was.
MR LUNNEY I suggest to you that as he was coming around the
corner he was in one of those wheel marks on the road,
the most left-hand wheel mark on the road of the two,
on his left-hand side of the road?
MR ENGLAND I'm not sure if it was that far across.
MR LUNNEY Your impression is of seeing the cyclist coming
round the corner but you're not terribly sure
whereabouts on the road he was?
MR ENGLAND No, I'm not sure that he was that far over to the
left-hand side.
MR LUNNEY But he may have been?
MR ENGLAND He may have been. My impression was he was more close
to the middle.
MR LUNNEY As he came around the corner you were aware of Mr
Barlin swinging to the left?
MR ENGLAND I was.
MR LUNNEY You also saw the motorcyclist swing to his left
as well, didn't you?
MR ENGLAND Yes, I did.
MR LUNNEY He didn't appear to actually brake?
MR ENGLAND I couldn't tell.
MR LUNNEY But you didn't see him fishtail or anything like
that?
MR ENGLAND No, he didn't fishtail.
MR LUNNEY Do you know what fishtailing means? So it's
likely that he didn't brake?
MR ENGLAND That is, yes.
MR LUNNEY But you saw him move to his left?
MR ENGLAND Yes.
MR LUNNEY How far to his left did he go?
MR ENGLAND The bike was skidding a bit so it probably would have
only been about a metre at the most.
MR LUNNEY Well, would you agree with this, that he moved as
far to his left as he possibly could go?
MR ENGLAND No.
MR LUNNEY There is a little gully or drain on his left-hand
side of the road, isn't there?
MR ENGLAND Yes, there is.
MR LUNNEY So that the bike wouldn't be able to get down
into that drain safely, would it?
MR ENGLAND No.
MR LUNNEY Well, would you agree with this, that he got as
close to that drain as he could safely go?
MR ENGLAND Yes, he would have."

23. He also confirmed that Mr Barlin braked immediately before the impact. The cross-examination continued:

"MR LUNNEY So how effective was that? Did it slow the two
vehicles down a lot or a bit?
MR ENGLAND It would have only slowed it down a little bit.
MR LUNNEY So that at the time that the impact actually
occurred your recollection is that your vehicle was
still travelling?
MR ENGLAND Yes, it would have been.
MR LUNNEY And at that moment of impact you were approaching
the bushes, were you?
MR ENGLAND Yes.
MR LUNNEY And the vehicles kept on going and eventually you
were then in the bushes?
MR ENGLAND Yes, they were up against the car.
MR LUNNEY And that was when you stopped?
MR ENGLAND That was."

24. The significant parts of that evidence are that Mr England does not corroborate Mr Barlin's claim to have been travelling with his right hand wheels between the formed tracks, and probably contradicts his claim that he had practically stopped by the time of the impact. It also corroborated that the plaintiff moved as far to his left as he was able. That is also inherently probable, because it is relatively easy for a motor cyclist travelling at a moderate speed to veer a metre or so to the left within a short distance.

25. Considering the whole of that evidence in the light of the inherent probabilities, taking into account especially the nature of the road and its remote location, I think that it is more probable that the plaintiff was travelling along the wheel track, as he said he was, and that when he first saw the defendant's vehicle it also had its wheels in the formed tracks. The plaintiff was travelling at a speed at which his cycle would have been easy to manouvre. He moved as far as he could to his left. Because of the distances involved I do not find his estimate of "at least a quarter of the trailer" being on his side of the roadway particularly significant. This was not a suburban street with a marked centre line. Both drivers had to expect vehicles to be travelling in the formed tracks, which, in the case of a car, would mean straddling the centre.

26. It does not follow that because I accept the plaintiff's version as being the more likely that the defendant was guilty of negligence. To travel that road in a Range Rover at a moderate speed with the wheels in the formed track was not in itself a failure to take reasonable care for drivers coming in the opposite direction. If that other driver was behaving in a similarly prudent fashion it would have been fairly easy to avoid a collision. It is significant that he was able to pull to the left in sufficient time to enable the plaintiff to pass down the right hand side of the Range Rover.

27. Travelling in the position and at the speed that he was, the plaintiff also was able to move his bike quickly to the left as far as possible and avoid collision with the Range Rover.

28. The extra complicating factor in this case, however, was that the Range Rover was towing a trailer which was wider than the car. Again, it itself, that was not negligent. But this road was so narrow and winding that it called for the exercise of more than usual care. I think that he should have been driving more slowly and further to his left. He claimed in his evidence that he was doing so, but, as I have said, I am persuaded on the balance of probabilities that he was not. Had he been travelling more slowly and further to his left he would have been able to move even more quickly further to his left, so that there would have been more room for the cyclist to pass between the mudguard and the side of the road.

29. There will therefore be judgment for the plaintiff.

30. Accepting that his speed was reasonable, and that he could not sensibly move any further to his left or stop before the point of impact, I am not satisfied that the plaintiff failed to take reasonable care for his own safety. I do not think that the concession that he made in his cross-examination meant any more than that he had no opportunity to avoid the collision. I do not think he appreciated the lawyerly precision of the cross-examiner's phrase "You gave yourself no opportunity." Similarly, I do not regard the entry he made in the claim form as being at all fatal to his claim. The layman looking at this accident probably would attribute it primarily to the narrow road, poor visibility and vegetation. That does not prevent a court, on more complete analysis, from concluding that the defendant, while driving a car which was towing a wider trailer, failed to exercise due care in the circumstances. There will therefore be no reduction of his damages on account of contributory negligence.

CHOICE OF LAW
31. When the case was argued, in February 1993, the practising legal profession was still coming to terms with the decisions of the High Court in Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41 and McKain v Miller [1991] HCA 56; (1991) 174 CLR 1.

32. The facts of this case then appeared to raise for decision the question whether the so called "flexible exception" referred to by Lord Hodson and Lord Wilberforce in Chaplin v Boys (1971) AC 356 forms part of the common law in Australia. If ever there was a case where the place of the occurrence of the wrong was fortuitous, it was argued, this was that case.

33. In Breavington v Godleman Mason CJ considered this issue but his opinion on it was not part of his ratio decidendi. On the facts of that case he thought that the application either of the strict lex loci rule, or of that rule subject to the flexible exception, both produced the same result (p 79).

34. Wilson and Gaudron JJ (at p 93) resolved the dilemma by reference to s.118 of the Constitution, not by deciding this issue.

35. Brennan J (at pp 112-114) was not in favour of importing Lord Wilberforce's flexible qualification into Australian common law.

36. Deane J adopted a more radical approach, by denying room within an Australian unitary system of national law for the direct application of private international law principles in order to resolve competition between the laws of different States (p 135).

37. Dawson J (at p 147) could not see any benefit to be gained from giving a flexible application to the rule in Phillips v Eyre within Australia.

38. Toohey J (at pp 161-163) thought it appropriate to accept the flexible approach enunciated by Lord Wilberforce. But he also held that in Breavington where both parties at the time of the accident were resident in the Northern Territory, there was no basis which could justify the application of the exception. Substantially, on this issue, he was in agreement with the Chief Justice.

39. McKain v Miller to some extent resolved for the time being some of the difficulties arising from the various reasons for the decision in Breavington. The majority in McKain v Miller held that the solution to questions of conflicts of laws within Australia must be found in the common law, and not in Section 118 of the Constitution. The actual decision accepted that by common law rules the Statute of Limitations that was there being considered was a rule of procedure, and therefore to be governed by the law of the forum.

40. The present case did not, at the time it was argued, appear to revolve around such a distinction. It was accepted, I think, by counsel, and assumed by me, that the principles according to which damages for personal injury are to be assessed were not matters of procedure, but matters of substantive law. In other cases previously determined by me in this Court I have so held, accepting with respectful gratitude the firm expression of opinion on the matter by Mason CJ in Breavington at p 79, and of Hope AJA in Byrnes v Groote Eylandt Mining Co Pty Ltd (1990) 19 NSWLR 13 at 33, and despite the indications of a contrary view by Brennan J in Breavington at p 119. See, for example, Robbins v Webb ACT Supreme Court, Master A Hogan, 5 August 1991, (unreported). Where such authorities so differed I was prepared , with Rich J in James v Cowan [1929] HCA 47; (1930) 43 CLR 386 at 424, to "await with a patience not entirely hopeless the powerful beacon light of complete authoritative exposition from those who can speak with finality."

41. Since it was my view that the law about damages was a matter of substantive rather than procedural law, the plaintiff in this case stood to have his damages reduced by the application of Section 79 of the Motor Accidents Act 1988 of New South Wales unless his case could be brought within the ambit of Lord Wilberforce's flexible exception.

42. It therefore appeared to me, as I took up this file to begin to reason my way to a decision, that I might well be called upon to express a view about which of the Justices of the High Court had expressed a correct view about the applicability in Australia of the suggested "flexible exception". Along the way I could see myself being required to analyse, and express agreement with or dissent from, various Judges of the Supreme Courts of New South Wales, Victoria, Queensland and South Australia, in the cases referred to by Wilson and Gaudron JJ in Breavington at pp 92-93. Posterity has been denied the benefit of my elucidation of the conflict. A majority of those who can speak with finality have now given an authoritative exposition, although Mason CJ, Deane J and Gaudron J remained intransigent in their view that the category of "procedural" law should be confined to the narrow sense of being directed to regulating court proceedings. In Stevens v Head High Court of Australia, 18 March 1993, (unreported) Brennan, Dawson, Toohey and McHugh JJ, in a joint judgment, held that it included laws with respect to quantification of damages. They held (at p 25 of the unrevised copy of the Court's reasons):

"It follows that s.79 of the Motor Accidents Act is not to be
construed as containing substantive provisions for the purposes of the
conflict of law rules governing the assessment of damages for
extraterritorial but intranational torts. Adopting the distinction
between heads of damage and the quantification of damages in respect of
heads of damage, s.79 is a law with respect to quantification. Therefore
it is not the law which a Queensland court applies in assessing damages
for non-economic loss suffered by a plaintiff who was injured in an
accident occurring in New South Wales. The validity of this conclusion
can be demonstrated in another way. If each State and Territory in
Australia were to enact a provision differing in quantum, but expressed

in

the form of Pt 6, the courts of each State or Territory would be bound to
apply the provision enacted in that State or Territory regardless of
conflict of law rules. The provision corresponding with S.70 would
represent a command to the courts of that State or Territory to assess
damages as provided: it would not be subject to any exception created by
the conflict of law rules. The application of the equivalent of Pt 6
would not rest upon its classification as procedural or substantive but
upon the legislative intent. Double actionability (in the sense

explained

in McKain) operates satisfactorily with respect to causes of action; with
respect to the quantification of damages, no law other than the lex fori
can work effectively."

43. The view that I expressed in Robbins v Webb was not entirely without support in authority, and had the benefits of certainty and of reducing the temptation of forum shopping, but, again to quote Rich J in James v Cowan at p 424, "One demerit was found in this view which was sufficient to make it untenable, namely, a majority of the Court steadfastly refused to adhere to it."

44. I loyally and respectfully adopt and apply the decision of the majority in Stevens v Head. In the absence of any legislative provision operating in the Australian Capital Territory which requires me to do otherwise, in this and subsequent cases I propose to apply the principles of the common law when assessing damages in respect of injuries tortiously inflicted anywhere in Australia.

FORUM SHOPPING
45. There are two current developments in the law that make it timely to comment, in the context of this case and for this Court, on the problem of forum shopping.

46. The first is the majority decision in Stevens v Head. The second is the new Service and Execution of Process Act 1992 (Cth), which, unless it is proclaimed to commence earlier, will come into force on 12 April 1993.

47. By s.15(1) of that Act, an initiating process issued in this Court may be served anywhere in Australia. There is no requirement for prior leave. There is no requirement in order to effect service that there be any connection between the cause of action and the Australian Capital Territory. There is no requirement for leave to proceed if an appearance is not entered. There is not even a requirement for any particular endorsement on the originating process. All that will be required, pursuant to s.16, is that the copies of the Notices that are to be prescribed are to be attached to the copy of the process served.

48. A very large part of this Court's business is concerned with actions for damages for personal injury. They are actions in personam. In Laurie v Carroll [1958] HCA 4; (1957-1958) 98 CLR 310 at 323, Dixon CJ, Williams J and Webb J re-affirmed Dicey's statement that:

"The service of the writ, or something equivalent thereto, is
absolutely essential as the foundation of the court's jurisdiction.

Where
a writ cannot legally be served upon a defendant the court can exercise no

jurisdiction over him. In an action in personam the converse of this
statement holds good, and wherever a defendant can be legally served with
a writ, there the court, on service being effected, has jurisdiction to
entertain an action against him. Hence, in an action in personam, the
rules as to the legal service of a writ define the limits of the court's
jurisdiction."

49. After 12 April 1993, therefore, a plaintiff may issue a writ out of this Court claiming damages for personal injury for service upon a defendant anywhere in Australia, in respect of a cause of action arising anywhere in Australia, and this Court will have jurisdiction to entertain it. If it does so, it will apply the common law in assessing the quantum of damages, no matter what the law might be about the quantification of damages in the part of Australia where the cause of action arises. It should be noted, however, that the majority judgment in Stevens adopts the distinction between heads of damage and quantification of damages. It would seem, therefore, that the result would still be the same in Breavington.

50. Because the Territory is a small enclave surrounded by New South Wales, where s.79 of the Motor Accidents Act places limits on and reduces the amounts to be awarded for non economic loss, the potential for a rapid increase in the Court's business in personal injury compensation is obvious.

51. Section 20 of the Service and Execution of Process Act 1992 provides for an application to the Court of issue for an order staying the proceedings when a court of another State has jurisdiction and is the appropriate court, and subs.20(4) sets out the matters to be taken into account in determining that question. But that section does not apply where it is a Supreme Court which is the court of issue (S.20(1)).

52. In the second reading speech on introducing the Bill for the Act Senator Bolkus said:

"No endorsement will be needed on process commencing a proceeding
against a person in another State. Solicitors will be able to use
the one document for service anywhere in Australia, supplemented by
an information notice as prescribed when service is interstate.
Also abolished by the Bill is the need for a particular connection
between the cause of action and the State in which proceedings are
commenced. Instead, the Bill provides for a stay of proceedings in an
inferior court where there is a more appropriate forum to determine the
matters in dispute between the parties. Combined with the cross vesting
legislation which provides, amongst other things, for transfer of
proceedings between Supreme Courts, this will enable cases to be
determined in the most convenient forum."

53. The relevant cross vesting legislation for this Court is the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth). Sub-section 5(2) of that Act provides:

"(2) Where:
(a) a proceeding (in this subsection referred to as the "relevant
proceeding") is pending in the Supreme Court of a State or
Territory (in this subsection referred to as the "first court");
and
(b) it appears to the first court that:
(i) the relevant proceeding arises out of, or is related
to, another proceeding pending in the Supreme Court of
another State or Territory and it is more appropriate
that the relevant proceeding be determined by that
other Supreme Court;
(ii) having regard to:
(A) whether, in the opinion of the first court, apart
from this Act and any law of a State relating to
cross vesting of jurisdiction, the relevant
proceeding or a substantial part of the relevant
proceeding would have been incapable of being
instituted in the first court and capable of
being instituted in the Supreme Court of another
State or Territory;
(B) the extent to which, in the opinion of the first
court, the matters for determination in the
relevant proceeding are matters arising under or
involving questions as to the application,
interpretation or validity of a law of the State
or Territory referred to in sub-subparagraph (A)
and not within the jurisdiction of the first
court apart from this Act and any law of a State
relating to cross vesting of jurisdiction; and
(C) the interests of justice;
it is more appropriate that the relevant proceeding be
determined by that other Supreme Court; or
(iii) it is otherwise in the interests of justice that the
relevant proceeding be determined by the Supreme Court
of another State or Territory;
the first court shall transfer the relevant proceeding to that other
Supreme Court."

54. It will not be usual for there to be proceedings pending in another court where the writ issues out of this Court claiming damages for personal injury.

55. Sub-paragraph 5(2)(b)(i) will therefore not usually be relevant.

56. Sub-paragraph 5(2)(b)(ii) requires that the proceedings be transferred to another Supreme Court where three cumulative considerations make it more appropriate that the other Supreme Court determine them. Those considerations are, shortly:

A. whether the proceedings could not have been instituted in this Court
had there been no cross vesting legislation, but they could have been
instituted in the other Court;
B. the extent to which the proceedings involve questions of the
application, interpretation or validity of a law of the State of the
other Court which this Court could not determine were it not for the
relevant cross vesting legislation;
and
C. the interests of justice.

57. Since actions for damages for personal injury are actions in personam, they can be instituted in this Court and be served under the Service and Execution of Process Act 1992, so that this Court has jurisdiction in them without resort to the cross vesting legislation. Sub-paragraph 5(2)(b)(ii) will therefore not usually be relevant in the types of cases that I am referring to.

58. So far, therefore, as the provisions of the cross vesting legislation are concerned, this Court would proceed to hear and determine the action unless the defendant succeeded, on an application under sub-paragraph 5(2)(b)(iii), in demonstrating that it was "otherwise in the interests of justice that the relevant proceeding be determined by the Supreme Court of another State or Territory".

59. It remains to be seen whether that test amounts to the same thing as what the Senator referred to as "the most convenient forum". It is not immediately apparent that it does.

60. It is also probable that it is a different test from that propounded in Sub-section 20(4) of the Service and Execution of Process Act 1992. There is no reason immediately apparent of the policy behind having one set of criteria for staying subordinate court matters, and another set for transferring Supreme Court matters.

61. On the facts that I dealt with in Stroud v Sovacki (28 January 1992, unreported) for example, it would have been arguable at least that it would not be in the interests of justice to have the proceeding determined by the Supreme Court of Victoria, as it was more likely that the most convenient forum would have been the County Court of Victoria. If the criteria set out in Sub-section 20(4) of the Service and Execution of Process Act 1992 had been available, however, a stay would have been inevitable.

62. I should also note that:

1. The originating process that I have been discussing does not have to
be process that purports to have been issued pursuant to the cross
vesting legislation. In actions in personam at any rate there will,
after 12 April 1993, be no need to rely upon that legislation in
order to give this Court power to deal with the subject matter of a
dispute which arises in any part of Australia.
2. By sub-section 8(4) the Service and Execution of Process Act 1992
will apply to the exclusion of a law of a State (which includes the
Australian Capital Territory) with respect to the service in another
State of process subject to the Act. Whether that provision has any
effect upon O.78 subrules 6(3) and 6(4) remains to be seen.
3. Sub-section 5(2) of the cross vesting legislation is not limited to
proceedings which purport to have been issued pursuant to that
legislation.

63. Hence, one possible restraint on the uninhibited recourse to this Court for the determination of personal injury cases arising out of occurrences elsewhere in Australia rests on the possibility of an application by the defendant pursuant to the cross vesting legislation for the action to be transferred to some other Supreme Court.

64. Another approach that defendants may adopt would be to apply to this Court for an order staying the action on the basis that this Court would be an inappropriate forum, applying the principles of the common law as laid down in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538.

65. Section 21 of the Service and Execution of Process Act 1992 provides that, if initiating process has been served under the Act, a court of a State that is not the place of issue must not restrain a party in the proceedings from taking a step in the proceedings on the ground that the place of issue is not the appropriate forum for the proceeding.

66. That section obviously does not inhibit the granting of a stay by the court which issued the originating process.

67. I do not need to analyse or cite the majority judgment in Voth in order to demonstrate that more would be required to be shown in order to obtain such a stay than that some other court was, to quote the Senator "the most convenient forum".

68. On the facts of this present case, if they were to occur after 12 April 1993, I would venture to guess that a defendant would have difficulty in persuading a judge of this Court either that the interests of justice require the case to be transferred to the Supreme Court of New South Wales under the cross vesting legislation, on the one hand, or that, on the other hand, there being available the District Court of New South Wales to whose jurisdiction the defendant would be amenable, (because service of its process can be effected upon him under the Service and Execution of Process Act 1992) the action should be stayed because this Court would be a clearly inappropriate forum, as required by the principles enunciated in Voth.

69. In what circumstances defendants will be able to succeed on such applications remains to be seen.

DAMAGES
70. On impact the plaintiff was thrown off the bike onto the ground. He did not lose consciousness. Apart from the injury to his leg he suffered some bruising only. But his right lower leg was broken. A part of his shin bone was protruding through the skin. He was in great pain.

71. The accident happened in a remote area. It was two hours before the ambulance arrived, and the journey to the hospital was long and painful.

72. He was taken to Royal Canberra Hospital. On arrival he was clinically alert and oriented. There was a 2 centimetre laceration over the anterior tibia. X-rays revealed a comminuted fracture of the midshaft of the right tibia and a transverse fracture of the midshaft of the fibula. There was valgus deformity at the fracture sites and dorsal displacement of the distal fragments.

73. He was given intravenous fluids, antibiotics, analgesia and tetanus toxoid booster, and taken to theatre where, under general anaesthetic, the wound was cleaned, particles of bone were removed and a full leg plaster cast was applied.

74. Four days later, on 22 November, Dr McNicol operated, this time under an epidural anaesthetic, to reduce the fractures by internal fixation with a surgical nail and 3 locking screws. He was conscious during the operation.

75. After about 4 days he began to move about, using crutches. With the assistance of the hospital physiotherapist he was sufficiently mobile by 4 December to be allowed out of the hospital still using crutches.

76. He went to his parents' home.

77. A community nurse attended at the home to dress the wound. He attended at the outpatients fracture clinic on 12 December 1990 and 8 January 1991. X-rays then showed satisfactory union.

78. On 11 February 1991 he was re-admitted to hospital, where Dr McNicol removed a locking screw from the nail. He was discharged the following day.

79. On 13 March 1991 compression of the fracture was noted by the clinic. He was not yet able to sustain full weight bearing on the leg.

80. On 24 April a check x-ray showed that the position of the tibial fracture was being maintained by the nail, but there was as yet no evidence of firm union. He was partially weight bearing with a stick. He was advised to bear weight fully on the leg, to help the process of union.

81. He returned 4 weeks later. (The hospital report states the date as 22 April, but I think it is clear that May was meant.) Solid bony union had still not occurred. Physiotherapy was prescribed.

82. On 19 June 1991 the position was relatively unchanged. He was still unable to climb ladders, and could not return to work. More physiotherapy was advised.

83. Dr McNicol reviewed him on 4 July 1991, some eight months after the accident. The plaintiff was still limping and suffering pain, although the pain was slowly getting better. At about that time he felt able to return to work as a plumber.

84. On 29 October 1991 he was admitted to John James Memorial Hospital as a day patient to have the remaining locking screws removed. When Dr McNicol reviewed him on 4 November the wound was well healed, but the fracture was still not sufficiently united to allow the nail to be removed. It had done so by 13 February 1992, and on 3 March 1992 he was again admitted to hospital, where Dr McNicol removed the nail. Post operative recovery was uneventful, so far as Dr McNicol was concerned.

85. Over the course of his recovery, after he returned to work, he found it necessary to be careful with the work that he did, and he was able to avoid roofing work, for example, which would have been both painful and dangerous for him.

86. On 23 June 1992 Dr McGrath, a rehabilitation consultant, examined him for the defendant. He was complaining of aching in the mid shaft region of the right leg. There was some swelling there. He also complained of numbness around the right knee, associated with difficulty in fully bending the knee or squatting. Cold weather aggravated the discomfort, and the knee locked on occasions.

87. Dr McGrath found that his right leg was 1.5 centimetres shorter than the left. His stance was such that his right shoulder was lower than the left, and his pelvis had a slight anterior tilt, with an exaggerated curve in the thoracic spine. He thought the postural problems were not related to the accident. The right calf was 1 centimetre less in circumference than the left.

88. Dr McGrath concluded that he was suffering some post traumatic pain in the knee, although it was not significantly impaired mechanically. There is a slight probability that post traumatic arthritis of the knee may develop, but Dr McGrath did not believe that it was very likely. He thought it more likely that the residual pain would resolve in time. He did not think that the slight difference in leg length was clinically significant, and had not led to a significant impairment. In summary he believed it was most likely that the plaintiff could remain in the plumbing trade for a normal working life.

89. None of the doctors were called to give evidence or be cross-examined.

90. By the time of the hearing, in February 1993, he was able to handle general plumbing work without difficulty. He did have problems with drainage work, getting into and out of trenches. Squatting and kneeling were also painful, and he had still not recovered enough confidence to return to roofing work. He still walks with a slight limp. There are visible scars at the knee, on the shin and above the ankle, and a lump over the callus at the fracture site on the front of the leg. There are other smaller scars at the sites where the locking pins were removed. He is conscious of the scars, and to a degree sensitive about them.

91. He is not prepared to go bike riding again. His ability to enjoy stream fishing is greatly restricted as a result. Swimming in cold water causes discomfort. He is not prepared to go snow skiing, because of the risk of another fracture. His description of his disabilities was not challenged in cross-examination.

92. In summary he sustained a compound comminuted fracture of the right lower leg. The fracture took an unusually long time to heal, prolonging his pain and discomfort. In all he underwent five operations on the leg, which has healed slightly shorter than the other and with multiple scarring. There is at least a possibility of arthritis in the knee in later life.

93. Although he has been able to return to work as a plumber, he must be at some disadvantage in the labour market because of his lessened agility. I do not assign a separate amount to that disability, but take it into account in assessing general damages.

94. Assessing his damages in accordance with the common law, for his pain and suffering and loss of amenity I would award $55,000, of which $20,000 relates to the future. The past component of that was not spread evenly over the period since the accident, but was concentrated somewhat in the first year or so. Taking that into account I would award $2,000 for interest on past general damages.

95. His loss of wages is agreed at $18,956.93. The bulk of that was incurred before June 1991. In lieu of interest I award a lump sum of $3,000 on the loss of wages.

96. The out of pocket expenses, additional to some that have been paid without prejudice by the defendant's insurer, total $6,141.65. There is no evidence on the basis of which I can award interest in respect of the out of pocket expenses.

97. The total amount to which he would be entitled in my judgment is made up as follows:

Pain and suffering $ 55,000
Interest 2,000
Loss of wages 18,957
Interest 3,000
Out of pocket expenses 6,142
TOTAL $ 85,099

98. I direct the entry of judgment for the plaintiff for $85,099.