Michael Alban Brown v Commonwealth of Australia and Peter Bolton [1994] ACTSC 26 (22 March 1994)

SUPREME COURT OF THE ACT

MICHAEL ALBAN BROWN v. COMMONWEALTH OF AUSTRALIA and PETER BOLTON
No. SC1630 of 1988
Number of pages - 7
Neligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Negligence - Motor Vehicle - Plaintiff standing in confined space on back of firefighting unit - Vehicle driven on rough ground at night - No issue of principle

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Broken leg - Osteoarthritis - Future operations - No issue of principle

HEARING

CANBERRA, 1 March 1994
22:3:1994

Counsel for the Plaintiff: G Stretton

Instructing Solicitors: Phillips Fox

Counsel for the Defendant: J Brewster

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff for $107,019.

2. The defendants pay the plaintiff's costs.

DECISION

MASTER A HOGAN This is an action for damages for personal injuries arising out of an accident on 12 February 1986, when the plaintiff was on duty as a volunteer firefighter with the Hall Volunteer Bush Fire Brigade.

2. The plaintiff attended a grass fire in the vicinity of the then Canberra College of Advanced Education at Bruce, together with two other members of the Brigade, Mr Fulton and Mr Bolton. The vehicle in which they attended was a Toyota light truck. Three persons could be accommodated in the front cabin. The tray at the rear was bounded by fixed sides at the front and sides, and a tailgate at the rear. The rear wheel arches protruded some distance into the tray above the rear wheels.

3. The front part of the tray contained a water tank, which just fitted between the wheel arches. Behind the water tank and on the driver's side was a pump. The pump was fitted with a rail which appears to be at a height of about half a metre above the tray, or just below knee height for a person standing on the tray. On the left hand side was a reel on which a hose was wound. There was also a shorter hose, which was stowed by being looped into a secure position. Both hoses were connected to the pump. At about the height of the roof of the cabin there was a frame constructed of square steel tubing, supported by uprights of the same material at the corners. The horizontal rail would appear to be between waist and shoulder height for a person standing on the tray.

4. There was very little room between the equipment and the sides or the tailgate of the tray.

5. Mr Fulton drove the unit to the side of the fire, which was on a large unoccupied block of land, bounded by Aikman Drive, College Street and Cooinda Street. The witnesses do not agree about what happened next.

6. The plaintiff's version is that the three men then attacked a flank of the fire. Mr Fulton drove the unit along at a walking pace, while the plaintiff and Mr Bolton walked behind and to the side of it, each with a hose, extinguishing the flank of the fire as they went. The ground was quite uneven.

7. When they had dealt with their flank of the fire the vehicle halted. The time was about 10 pm. The vehicle was then turned around, so that it was facing down a slope, and the plaintiff and Mr Bolton put their hoses in the rear of the unit.

8. The plaintiff said that the other two then left to see the Chief Fire Control Officer. He began to get the hoses sorted out. The nozzle of one of them became caught on something in the tray. He climbed into the tray to free it. While he was bending over working on the hoses someone got into the cabin and began to drive the unit down the slope. He called out, but the truck did not stop, so he braced himself as best he could against the chest high frame. After a very short period of travel the vehicle pitched forwards and came to a sudden stop. He lost his grip on the rail and was thrown forward, striking his left leg, just below the knee, against the guardrail of the pump. Within seconds he felt severe pain. He was helped down from the tray, he thought by Mr Fulton.

9. Mr Bolton's evidence was that as Mr Fulton drove the unit along the flank of the fire he and the plaintiff stood on the tray at the back and wielded their hoses from there, bracing themselves against the chest high rail. The ground was very uneven and they were bounced around, but managed to hang on. They got down at one time to deal with some hotter parts of the fire on foot and then got back onto the tray. They were driven to a place where the unit halted, a short distance from a larger tanker which was in attendance.

10. Mr Fulton got out of the driver's seat and walked towards the tanker. Mr Bolton got down from the tray, while the plaintiff remained there. He began to walk towards the tanker when he heard a call to bring the unit over to fill up with water.

11. He returned to the unit and got in to drive. He saw that the plaintiff was still on the back, talking to some other firefighters. Before he got into the driver's seat he said that he had to go and fill up. When in the driver's seat he could not see the plaintiff, but he assumed that he was still standing on the tray. He drove off towards the tanker. As he did so the right hand front wheel dropped into a hole and he accelerated out of it. The right hand rear wheel then went into the hole and he heard calls that the plaintiff was hurt, whereupon he stopped. After the plaintiff had been attended to Mr Bolton inspected the hole. It was about two feet square and 18 inches deep and had been dug with a back hoe. It had been obscured by burnt grass.

12. Mr Fulton's evidence was that he remembered driving the unit along the face of the fire. He could not remember whether the plaintiff and Mr Bolton fought it from the back of the truck or not. He came to a stop and parked the vehicle. He left it and went to speak to the chief officer, Mr Fenwick. He could not remember where the unit was in relation to the tanker. As he was speaking to Mr Fenwick he noticed that the Toyota unit was moving. He saw it lurch forward and come to an abrupt stop. He returned to the unit and helped to attend to the plaintiff.

13. I accept Mr Fulton's evidence that in cases of a fast running grass fire it might be necessary to fight it from the back of a motor vehicle. If those had been the circumstances of this case it might have been necessary to determine the issue whether this particular vehicle was properly designed or adapted to be used for that purpose without unreasonable risk of injury to those on the back.

14. But those were not the circumstances. The fire was no longer being fought. There was no element of urgency. The amount of space available for standing, the position of the pump and its rail, and the lack of adequate support or restraint for persons on the tray were circumstances which made it obvious that it would be dangerous for a person to be travelling in the back while the vehicle was being driven over obviously rough terrain at night.

15. On the basis of Mr Fulton's observation I am persuaded that the vehicle came to the sudden stop described by the plaintiff and was not accelerated over the hole in the manner described by Mr Bolton. I note that Mr Bolton's evidence was not to the same effect as his answers to questions eight and nine of the interrogatories Exhibit G.

16. If I were pressed to decide the matter I would also prefer the evidence of the plaintiff that while fighting the fire he and Mr Bolton were not on the tray. The fire was not a fast-moving or dangerous one, and it would obviously be not only safer but more convenient to perform the task on foot rather than from the rear of the unit.

17. But I do not think that what actions were taken beforehand is a crucial issue.

18. Mr Bolton knew that the ground was very uneven, on the basis of his own evidence. It was night-time. He knew when he got back into the unit to drive off that the plaintiff was still in the back. He knew what little space there was for a foothold in the back. He drove off without giving the plaintiff any real opportunity to alight.

19. I do not think that in fact he adverted to the danger posed to the plaintiff by his doing so. To him that sort of risk went with the job of fighting bushfires. But I am persuaded that he ought to have adverted to the danger, which no present emergency made reasonable, and that in driving off with the plaintiff in the back, to his knowledge, he exposed the plaintiff to an unreasonable risk of harm. It was conceded that the Commonwealth was vicariously liable for any default by Mr Bolton, so that the finding I have just set out is sufficient to dispose of the case. But if it were necessary I would hold that the Commonwealth also failed in its duty of care by not promulgating and enforcing a direction that firefighters should not travel in the back of units not properly adapted for the purpose, when to do so was not reasonably necessary in the course of fighting a fire.

20. There will therefore be judgment for the plaintiff.

21. I accept the plaintiff's evidence that he had no opportunity to get down before the vehicle was driven off and that it was impractical for him to jump off while it was moving. I find that he was not at fault in any way that contributed to his damage.

22. The plaintiff was born in Watford in England in 1952. He came to Australia in 1956 and was educated in Canberra.

23. In 1972 he joined the Australian Public Service as a base grade clerk with the Department of Foreign Affairs. He obtained a Bachelor of Arts degree at the Australian National University in 1974 and a Graduate Diploma in Administration at what was then the Canberra College of Advanced Education. Following a number of senior appointments, at the time of the accident he was senior private secretary to the Minister for Territories. He had joined the Volunteer Bush Fire Brigade in about 1983.

24. He was in good general health. He was affected by a condition known as Marfans Syndrome, which affects connective tissue and is characterised by a long frame, long fingers and large feet. He is about six feet three inches in height and wears a size 13 shoe. I do not think it makes any difference to my findings on liability that he would have been more constricted in the confined space on the back of the Toyota than most people.

25. After he was helped down from the vehicle he was taken by the Chief Fire Controller first to nearby Calvary Hospital, where the emergency section was closed, and then to Royal Canberra Hospital. He was x-rayed and a temporary cast was applied to his left leg, but he was in such pain that he has little memory of that night.

26. On 13 February 1986, under general anaesthetic, Dr Peter Morris, orthopaedic surgeon, operated to reduce and repair the fracture of the left tibial plateau. The fracture was comminuted and involved both the medial and lateral compartments of the tibia. The breaks were fixed with screws. The cruciate ligaments were intact, but on the retropatellar surface and the adjacent end of the femur there was evidence of chondral damage.

27. A backslab was applied and he was admitted to the ward. After a short time a movable brace was applied, to enable his knee joint to be flexed and exercised. Then he graduated to a wheelchair, and about a fortnight after the accident was discharged on crutches.

28. He was referred for physiotherapy and was able to return to work on 24 March 1986. Dr Morris reviewed him on 9 April 1986, 21 May 1986 and 25 March 1987. At that time he still had some knee discomfort, but a full range of movement.

29. He had been a recreational runner, but has been unable to resume that form of exercise. He continued to have pain in the knee.

30. Dr Lowe, his general practitioner, referred him to Dr Morris on 27 March 1991. Dr Morris found a full range of knee movement, but significant crepitus with flexion and extension. X-rays showed evidence of sclerosis and irregularity of the medial tibial plateau. There were post traumatic degenerative changes in the knee joint. Not only could he no longer run, he experienced pain in the knee after walking about half a kilometre.

31. Dr Morris reported in January 1992 that in his opinion further progression of deterioration in the joint is inevitable.

32. There is no impediment to his public service career. He is now Director of the Drugs Policy Unit in the Commonwealth Attorney-General's Department.

33. But there is now pain in the knee nearly all the time. He has difficulty in negotiating stairs. The pain worsens in cold and wet conditions. His limp is becoming more pronounced. He cannot kneel or squat. Sitting in a confined space, as in a cinema, or an aeroplane seat, becomes uncomfortable. The knee is sensitive to knocks and bumps. As a result of the lack of exercise his weight has increased from 160 to 270 pounds.

34. Dr Morris reviewed his condition on 21 June 1993. X-rays were consistent with early secondary osteoarthritis resulting from the accident.

35. His prognosis was that the screws should be removed in about five years time and that he should then undergo an osteotomy to relieve the degenerative medial compartment. Eventually he will need a total knee replacement, probably in his mid-sixties.

36. His estimate of the likely costs of those procedures, in today's figures, are $1,000 for removal of the screws, $5,000 for the osteotomy and $10,000 to $12,000 for the knee replacement.

37. In assessing damages for his pain and suffering I take into account the increasing chronic pain and discomfort as he comes to find each of those procedures necessary, as well as the trauma of the operations and recovery from them. Eight years have passed since the accident and his life expectancy would be of the order of 33 years (Luntz, 3rd edition, Table 7).

38. I assess compensation for his pain and suffering at $75,000, of which $35,000 would relate to the future.

39. Interest on the past component on the conventional basis is $6,500.

40. The agreed out-of-pocket expenses are $8,005.35.

41. The wage loss, including the Fox v Wood component, is agreed at $7,394.57.

42. In order to assess the present value of the cost of the future operations, I have assumed for ease of calculation that the removal of the screws will take place in five years time, the osteotomy in ten years, and the knee replacement in 20 years.

43. Table 1 in the third edition of Luntz gives the present value of those costs at three per cent as follows:-
$ 1,000 in five years time $ 862

$ 5,000 in ten years time $3,720
$10,000 in twenty years time $5,537

44. The total present value of the cost of the future operations therefore is $10,119.

45. The total award is made up as follows:-

Pain and Suffering $ 75,000
Interest $ 6,500
Out of Pocket Expenses $ 8,005
Wage Loss $ 7,395
Future Operations $ 10,119
TOTAL $107,019

46. I direct the entry of judgment for the plaintiff for $107,019. I order the defendants to pay the plaintiff's costs.