Benjamin Blakeborough Vjune Clark [1994] ACTSC 38 (15 April 1994)

SUPREME COURT OF THE ACT

BENJAMIN BLAKEBOROUGH v.JUNE CLARK
No. SC1745 of 1986
Number of pages - 7
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - Motor Vehicle Accident - Give Way Sign - Failure to obey - Contributory Negligence - No issue of principle

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Severe fractures of femur, tibia and fibula - Economic Loss - Artist - Valuing loss of an opportunity - No issue of principle

HEARING

CANBERRA, 28-29 March 1994
15:4:1994

Counsel for the Plaintiff: R McIlwaine

Instructing Solicitors: Nelson and Co

Counsel for the Defendant: P Burton

Instructing Solicitors: Vandenberg Reid

ORDER

The Court Orders that:
Judgment be entered for the plaintiff in the sum of $140,789.

DECISION

MASTER A HOGAN This is an action for damages for personal injury arising out of a motor vehicle accident on 26 January 1986.

2. At about 5.45 pm on that day the plaintiff was riding his motorcycle in a south easterly direction on Wattle Street, O'Connor, towards the intersection of that street with Scrivener and Goodwin Streets. He intended to leave Wattle Street at the next intersection, that with Berrigan Street, where he was then living. There is no evidence that he was exceeding the speed limit. He has given slightly different versions of his speed on different occasions but I am satisfied that it was of the order of 55 to 60 kilometres per hour. The speed limit in the area was 60 kilometres per hour.

3. The intersection with Scrivener and Goodwin Streets is controlled by Give Way signs, facing traffic in those streets.

4. As Scrivener Street approaches the intersection it changes direction from easterly to north easterly, a short distance before the intersection. The defendant was driving in that direction, in a vehicle in which her mother was a passenger. The defendant is deceased. Her mother is elderly and living in Tasmania. Statements made by each of them were admitted in evidence.

5. The plaintiff's evidence is that as he was approaching the intersection with Wattle and Scrivener Streets he noticed a car approaching on Scrivener Street. When he noticed it, it was about four to five metres back from the intersection. He thought it would give way to him. There was nothing that he observed about it to indicate either that it was about to give way, or that it was not.

6. He proceeded through the intersection. The car, driven by the defendant, did not stop at the sign, but continued on and collided with him.

7. The statement tendered in evidence, made by the defendant, read as follows:-

"I approached the intersection and because of the "Give Way" sign slowed
almost to a stop so I could look both ways along Wattle Street and did
not see any other vehicle using that street. I then proceeded across the
intersection at a slow but mildly accelerating speed. I was almost
across the intersection when there was a bang to the left front of my
car. I do recall seeing very fleetingly a speck out of the corner of my
left eye. I had not time to apply the brakes or take any evasive action
to avoid colliding with the other vehicle. I did not realise what I had
hit until I saw a man go through the air across my bonnet. Then I
realised I had hit a motor cyclist."

Later in the statement she said:-

"The intersection is reasonably open and the only thing I feel may
have caused me not to see the motor cyclist are the long shadows of
the large trees in the area."

8. The relevant part of the statement made by the defendant's mother, who was seated in the front passenger's seat, was as follows:-

"We slowed down as we came to the intersection which is controlled by
"Give Way" signs one of which was facing us. Out of habit I looked both
ways and saw no other vehicles coming from the left or right. My
daughter slowly accelerated across the intersection and suddenly there
was a loud bang on the front left side of our car. I then saw a person
go through the air and a motorcycle also going through the air."

9. The accident was witnessed by a Mr Marcus Bannister, a man with 46 years driving experience. He was driving towards the intersection in Goodwin Street, in the opposite direction to the defendant. As he approached he saw the defendant's vehicle also approaching in Scrivener Street. He estimated its speed at 40 kilometres per hour. He also saw the plaintiff on his cycle, approaching at a speed he estimated at 50 kilometres per hour. He did not see the defendant slow down. She appeared to him to come straight through the intersection.

10. Mr Bannister gave evidence by telephone. He noticed that as the defendant approached the intersection she appeared to be speaking to her passenger. He had no difficulty in seeing the plaintiff's approach.

11. It is clear that the defendant was negligent, in not keeping a look-out sufficiently to see the plaintiff, and in failing to give way to him in accordance with the sign.

12. Ironically, the plaintiff's case on the issue of contributory negligence would be stronger if I accepted the version given by the defendant and her mother. But I think that the description given by Mr Bannister is the more likely to be correct, and that she did not slow down as she approached the intersection. The plaintiff's own evidence is to the same effect.

13. Her speed however was not excessive as she approached. There may have been no indication in her behaviour that she was about to obey the Give Way sign. But neither was there anything in what she did to warn the plaintiff that she was about to disobey it, until it was really too late for him to do anything about it. Even if he had been keeping her more closely under observation I do not thinlk it would have made any difference.

14. There will therefore be judgment for the plaintiff. There will be no reduction in the judgment sum on account of any contributory negligence.

15. The plaintiff is a single man, born in June 1966. He completed his secondary education to school certificate level in Bowral in 1982. His ambition was to be an artist. His mother is an art teacher at Frensham, and his father a ceramic artist in Tasmania.

16. After leaving school he commenced to study painting at home with his mother and attended drawing classes at the Moss Vale Technical College. In 1984 he began at the Canberra School of Art and transferred to East Sydney Technical College after one semester. He also began to take an interest in the design and construction of theatrical stage sets.

17. In 1985 he began painting, on commissions that he received in the Bowral area. He began to exhibit in a local gallery, and at the same time to establish contacts in the theatrical field. He began a form of apprenticeship with a Canberra artist named Joseph Frost. Occasionally he undertook casual labouring work, to supplement his income.

18. He was very fit physically, running, cycling and bushwalking being his main forms of exercise, with skiing in the winter.

19. When the car struck him from the right he was thrown into the air. He did not lose consciousness. He immediately felt severe pain in his right leg.

20. An ambulance took him to Royal Canberra Hospital, where he was admitted under the care of Dr Coyle, orthopaedic surgeon. The injuries noted were a closed comminuted fracture of the proximal midshaft of the right femur, and open, comminuted, largely transverse fractures of the midshafts of the right tibia and fibula, with considerable soft tissue damage, and some skin loss. The pain was intense.

21. He was taken to the operating theatre that night, where, under general anaesthetic, Dr Coyle reduced and fixed the femoral fracture with a K nail, cleaned and partially closed the extensive lower leg wounds, and manipulated and temporarily immobilised the lower leg fractures with a plaster back slab.

22. When he recovered from the operation the pain was still severe. The wounds healed by granulation. The position of the fractures was difficult to maintain. The plaintiff was worried that he might lose all or part of his leg. He felt depressed and frustrated. His mother visited him regularly, to give him comfort and emotional support.

23. Dr Coyle found it necessary to perform another operation on 19 February 1986, to fix the tibial fracture internally using a large plate and multiple screws, and supplementing it with bone grafts to promote union. After that operation the pain seemed much the same to the plaintiff.

24. By early March he was able to be mobilised out of bed on crutches. When Dr Coyle reviewed him on 21 April 1986 the plaintiff appeared to him to be progressing satisfactorily. The joints were fully mobile and muscle power was returning. Early weightbearing was permitted and he went to his mother's home in Bowral, where she cared for him.

25. He was on crutches for three or four months. The wounds required dressing daily. His mother was working, but came home regularly at lunch time to check on his condition.

26. He progressed to walking with the aid of a stick. He noticed that his leg and foot were splayed outwards, to the right. His doctor in Bowral referred him back to Dr Coyle, who saw him again on 19 March 1987. He found that the tibial fractures had healed soundly and in good position, but clinical and radiological evidence showed an external rotation deformity of the femoral fracture of about 30 degrees. There was also some bending of the K nail and very doubtful healing of the fracture.

27. Dr Coyle therefore operated again, on 22 April 1987. Union was not occurring. He internally rotated the femur by 30 degrees and fixed it with a new, thicker, K nail, with a plate and screws. He filled all bony defects with grafts taken from the iliac crest. He also removed two screws from the right tibia, which had been causing discomfort.

28. Again he had to go through the painful process of recovery. He was discharged from hospital, non-weightbearing, and on crutches. On 26 June 1987 Dr Coyle thought his progress was satisfactory. He permitted weightbearing from that date and advised physiotherapy to help with general strengthening and gait retraining.

29. The plaintiff was able to return to small scale drawing and painting, but of course he was not capable of creating works of any size, or of doing theatre or labouring work. His mother helped him through the process of recovery as before.

30. With the straightening of the leg, as recovery progressed the pain lessened. Late in 1987 he undertook a study trip in Japan for four and a half months.

31. In March 1988 Dr Coyle found radiological evidence of advanced union of all the fractures. On 18 April 1988 he operated to remove the nail, plate and screws from the femur and the plate and screws from the tibia. He noticed on operation that the tibia appeared avascular at the fracture site, and union on the medial side of the tibial fracture appeared weak. He advised the plaintiff to be careful for six months, because of the risk of refracture. He was not able yet to return to labouring or theatre work, or to engage in his exercise activities, but he continued with his painting, exhibiting in Berrima, and arousing the interest of Ben Grady, who operates a gallery in Canberra.

32. On review in February 1989 Dr Coyle judged the tibia to be about 90 per cent of its normal strength. The plaintiff made no complaint to him of pain or loss of function, and said that he was beginning to engage in a little running. Dr Coyle discharged him from further supervision and told him he could resume all activities.

33. Early in 1989 he was able to work at the Canberra School of Art, assisting the curator to hang paintings and move them around the premises. He still had to be careful and could suffer some pain after exertion or in cold weather. He began cycling again, which helped to strengthen his muscles.

34. Late in 1989 he moved to Melbourne, where he was examined on 21 March 1990 by Dr Monk. He was complaining of pain in the right leg in cold weather. X-rays revealed bony union. He referred him for further opinion to an orthopaedic surgeon, who demonstrated a 1.5 centimetre shortening in the femur with slight posterior laxity in the knee, but generally felt that his condition was good and that no treatment was required. He resumed working with sets at the Playhouse Theatre. He felt some restrictions in climbing ladders or moving heavy objects, and concentrated on light work.

35. He returned to Canberra and began running short distances again. He found it necessary to be careful not to injure the skin on his leg. His solicitors referred him for an opinion to Dr James, plastic surgeon, who saw him on 24 June 1991. His complaints were pain in the affected areas in cold weather, decreased durability of the skin on his right leg and an area of loss of sensation on his right leg.

36. Dr James described the scarring as follows:-

Examination reveals on his right thigh a 6 cm vertical scar at the top of
the thigh with a 6 cm oblique scar overlying the posterior iliac crest.
On the lateral aspect of the thigh is a 16 cms vertical scar. All these
scars are cross hatched with stitch marks. Over the middle third of his
right tibia is an 11 cms vertical stretch scar which is up to 5 cms in
width. The scar is thin when compared to the surrounding tissue. On the
medial side of the tibia is a 13 cms x 1 cm scar which is slightly
depressed. Over the lower half of the tibia is a 20 cms by 8 cms area of
decreased sensation.
All the scarring is permanent and constitutes an obvious cosmetic
deformity. The area of sensory loss is permanent. The quality of
scarring over the middle third of the right tibia is such that there is a
decreased durability in the skin. This situation is permanent and
therefore Mr Blakebrough will always have to take care of the tissues in
these areas.
No further treatment is recommended. I would not consider that further
deterioration in his present situation is likely.

37. In Canberra he resumed theatre work in Splinters Theatre, and exhibiting paintings. He had begun to work on larger paintings, but still suffered discomfort on moving heavy weights or kneeling, squatting or standing for long periods.

38. By 1993 he was able to run for eight kilometres, but needed to rest. He spent some time as a visiting artist in Wollongong University, where naturally he became involved in the heavy physical work of welded sculpture, so popular in that district.

39. This year he and a partner have set up a company to contract for building theatre sets. The venture is still in the formative stage. He is concerned that his physical capacity may be limited.

40. Dr James reviewed him on 9 March 1994. He noted a complaint of lower back pain after exertion, of which the plaintiff gave evidence, but otherwise his observations, opinion and prognosis were unchanged.

41. Dr Coyle reexamined him at about the same time. He noted the following complaints, which accord with the plaintiff's evidence:-

1. Aching in the mid right thigh at the site of the femoral fracture in
cold moist weather which he claims is not getting better and is probably
getting worse.
2. Aching in right lower leg with heavy lifting and after a long
active day.
3. Pain in the right lower leg after running a long distance, probably
more than eight kilometres, and makes further running unpleasant if not
impossible.
4. Severe pain in the lateral side of the left knee complained of to
me for the first time today and apparently of recent onset, also only
occurring after eight kilometres but preventing further running.
5. Low back pain after a long heavy or active day or after a long run.
6. Surgical scarring associated with some local sensory numbness and a
prominence of the right shin which is uncomfortable if bumped beside the
healed fracture.

42. On examination, apart from the scarring, and less than 1 cm of shortening, he found no abnormality. His summary, with which I agree, was as follows:-

Ben Blakeborough has had a very good result from treatment for the severe
injuries he sustained to his right lower limb eight years ago. The
symptoms involving his right lower limb listed above can be directly
attributable to these injuries; these are of nuisance value only and he
is able to work a full day and run long distances but do interfere with
his enjoyment of life to a certain extent. The other symptoms, namely
the low back pain and the left knee pain, cannot be directly attributable
to his injuries but may be associated in an indirect way because of the
long time that he was away from normal physical activities and his
marginally altered gait. After this length of time I am confident that
the situation has fully stabilised.

43. It was not necessary for any of the doctors to be called to give oral evidence. It is clear that there will always be some discomfort in the leg from time to time, but I do not think that this plaintiff has suffered any diminution in his income-earning capacity for the future.

44. Nevertheless, the original injury was quite severe and painful. He was frustrated and depressed for some time. He underwent a series of operations under general anaesthetic, with the pain and discomfort of recovery. Although there has been full functional recovery there will always be intermittent discomfort. He is only 27 years of age.

45. For his pain and suffering I award $70,000, of which $10,000 relates to the future. I include in that award a small element of expense for future treatment of skin lesions. Interest on the past component is $10,000.

46. The out-of-pocket expenses are agreed at $23,289. No claim is made for interest in respect of them.

47. The assessment of past economic loss is not a matter of calculation. It amounts to the valuation of a lost opportunity, over a period of about eight years, during which time the plaintiff might have been expected to progress much further towards success in his chosen career.

48. But earnings in such a career are themselves problematical. He is obviously talented, both in artistic and theatrical work, but, especially in the early years, careers in those fields are not notoriously lucrative.

49. Especially in the earlier part of that eight year period his earnings may be expected to have been quite minimal. I do not think that award rates give any assistance at all in the resolution of this problem. Had he not been injured I do not think he would have worked for award wages. I think he would have entered earlier on the entrepreneurial type of activity that he has now undertaken. He would have been prepared to sacrifice years on very low remuneration for the satisfaction and chance of success as a painter and mechanist in the future.

50. I think that a fair assessment of the value of that lost opportunity over that time is $30,000. It follows from the nature of such an award, I think, that it does not attract any award of interest.

51. The claim for the value of the services provided by the plaintiff's mother also is not capable of exact calculation. On the basis of her unchallenged evidence I would estimate the time spent as being of the order of 700 to 800 hours. The rate is agreed at $10 an hour. I award $7,500 for this item.

52. The total award is therefore made up as follows:-

Pain and Suffering $ 70,000
Interest $ 10,000
Out of Pocket Expenses $ 23,289
Past Economic Loss $ 30,000
Value of Mother's Services $ 7,500
TOTAL $140,789

53. I direct the entry of judgment for the plaintiff for $140,789.