Robert Joseph Aitken v Aj Bush and Sons Manufacturers Pty Limited [1994] ACTSC 67 (30 June 1994)

SUPREME COURT OF THE ACT

ROBERT JOSEPH AITKEN v A.J. BUSH AND SONS MANUFACTURERS PTY LIMITED
No. SC990 of 1984
Number of pages - 16
Negligence - Nuisance - Damages

COURT

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

CATCHWORDS

Negligence - Motor Vehicle Accident - Truck parked at side of road - Night time - State of lighting - Visibility of truck - Plaintiff collided with rear - No issue of principle.

Nuisance - Highway - Truck parked at night time - No breach of traffic regulation - Visibility - No issue of principle.

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Fractured hip - Intermittent employment history - No issue of principle.

Dymond v Pearce (1972) 1 All ER 1142

March v Stramare [1991] HCA 12; (1991) 171 CLR 506

HEARING

CANBERRA, 14-15 June 1994
30:6:1994

Counsel for the Plaintiff: Mr I Byrne

Instructing Solicitors: J A Horniblow

Counsel for the Defendant: Mr B Hull

Instructing Solicitors: Crossin Barker Gosling

ORDER

The Court orders that:

1. Judgment be entered for the defendant.
2. The plaintiff pay the defendant's costs.

DECISION

MASTER A HOGAN This is an action for damages for personal injury sustained by the plaintiff in a motor vehicle accident on 26 May 1987.

2. Not long after 11.00pm on that night the plaintiff was driving his car South in Captain Cook Crescent, Griffith, when it collided with the rear of an 8 tonne truck owned by the defendant, which had been parked in that street, also facing South, by Mr Logue, a driver employed by the defendant.

3. There was no issue raised about the extent of the plaintiff's injuries. The matters of contention were the extent of the plaintiff's economic loss and whether the defendant was liable for his injuries at all.

4. The plaintiff suffered severe injuries. He lost consciousness. He was taken to Royal Canberra Hospital by ambulance and admitted under the care of Dr Dyason. He had sustained a central dislocation of the left hip. His 7th, 8th and 9th ribs on the left side of his chest were fractured, and he appeared to have an intra abdominal injury, with hypotension.

5. He was taken to the theatre where Dr Dyason performed a laparotomy. Apart from bruising of the abdominal wall, there was no intra abdominal injury.

6. Dr Kitchin undertook treatment of his orthopedic injuries. He found a fracture dislocation of the left pelvic bone, with medial displacement of the floor of the left acetabulum and the head of the left femur. He placed the plaintiff in traction, which was maintained for six weeks. He was discharged from hospital on 22 July 1982, and was mobilised on crutches. He had outpatient physiotherapy at Woden Valley Hospital. After about six months on crutches he used a walking stick for about another six months. He learned some exercises from the physiotherapist which he still performs.

7. His general practitioner, Dr Ooi, referred him to Dr Stubbs, orthopedic surgeon, who saw him on 15 July 1983. He complained that since his discharge from hospital he had a painful stiff left hip. He walked with a limp and had an apparent leg length inequality. There was severe limitation of hip movements, with marked pain at the extremes of movement. There was muscle wasting about the left lower limb. There was also a strain at the right acromio clavicular joint. X-ray displayed the central fracture displacement, with continuing displacement of the head of the femur, gross arthritic change, and imperfect bony union of the medial acetabular wall.

8. Dr Stubbs thought even then that the plaintiff had a choice between arthrodesis of the hip or total hip replacement. The replacement would be difficult because of the damage to the wall of the acetabulum. Bone grafting would probably be needed.

9. The plaintiff did not proceed with any operation on the hip at that time.

10. His solicitors referred him to Dr Ferguson, pain management specialist, who saw him on 10 January 1985. Dr Ferguson took a very detailed note of the sufferings that he had endured, both in the accident and over the time since. He noted the severe pain that the plaintiff had suffered, and of which he gave evidence, when the urinary catheter was removed in hospital. He continues to suffer pain on micturition, and some faecal incontinence. The laparotomy scar was still painful. He was experiencing lower back pain. He began to drink more heavily.

11. The principal focus of his pain was in the left hip, buttock, groin and penis. The chest pain had subsided about six weeks after the accident. The right shoulder gave occasional trouble.

12. Dr Ferguson's report details the scars that he observed as follows:

"There was a broad, 8 cm, curved scar of his frontal scalp, 2 broad
scars of his right forehead which each measured 5 cm in length, a 10
cm broad laceration of his nose and left upper lip, a 17 cm mid line
scar of the upper part of his abdomen (epigastrium), a 6 cm scar of
the side of his left hip which was broad and indented in its lower
half and 2 circular scars of the inner and outer aspects of his
upper left leg each of which measured 0.5 cm in diameter."

13. His report summarises his conclusions as follows:

1. Concussion, a severe general nervous shake-up, and physical
shock, which together caused loss of consciousness on 2 occasions
during the first 2 hours after the accident.
2. A displaced central fracture-dislocation of his left hip, which
resulted in 2.5 cm shortening of his left lower limb, restriction
of movements and accelerated arthritis of his left hip and wasting
of his left thigh and leg muscles.
3. Fractured lower left ribs laterally.
4. Probable fracture of his nose, which resulted in slight nasal
discharge and intermittent nasal blockage since the accident.
5. Subluxation (mal-alignment) of his cervical, dorsal and lumbar
spine, which has been responsible for his persistant (sic) lower
back pain and tenderness, left lower limb cramps, urinary
complaints, incontinence of faeces, unsteadiness on adopting a
head-back posture with his eyes closed while standing, occasional
tinnitus (ringing noise in his ears), restriction of his neck
movements, spinal tenderness, reduction of his left ankle-jerk
tendon reflex and radiological abnormalities of his spine and has
contributed (sic) to the pain in his left buttock, groin and penis,
and his abnormality of stance, since the accident.
6. Minor brain damage, which has caused impairment of his
concentration, memory and intellect.
7. Bruising of his right shoulder and abdomen.
8. Scars due to the accident and his surgical treatment, which are
cosmetically significant and responsible for his remaining upper
abdominal pain in the region of his laparotomy scar and slight
remaining discomfort in the scar of his nose and left upper lip.
9. Mild traumatic arthritis of his right wrist, which was initiated
by extra use of the wrist in using a walking stick during his
recovery from the accident.
10, Personal consequences which have been mentioned.
He also had past affection of his dorsal spine by Scheuermann's
disease which was asymptomatic prior to the accident and had not
contributed to his complaints since the accident."

14. He recommended further treatment as follows:

"The main injury which Mr Aitken sustained in the accident was the
central fracture-dislocation of his left hip, which had led to
accelerated arthritis of the hip, has caused him to be unfit for any
form of employment since the accident and will lead to increasing
pain and disability in the future in the absence of effective
treatment. Surgical replacement of his left hip would entirely, or
almost entirely, relieve his left hip pain and would compensate for
the 2.5 cm shortening of his lower limb with benefit to his spinal
injury. However, with present techniques he would probably need to
undergo replacement of the hip joint on 2 further occasions during
his life time, but future advances could reduce the need for
replacement of the hip joint on only 1 occasion. His left hip
movements will probably remain restricted such as to cause
difficulty in squatting and he will not be fit for more arduous
occupations and leisure pursuits such as those in which he has
engaged in the past, but he should be able to perform full-time
office work or a job which involves standing and walking with little
or no pain from his hip injury. An alternative, but acceptable form
of treatment to relieve his left hip pain would be surgical
stiffening (arthrodesis) of the hip, but the result would be to
greatly reduce his mobility. In the absence of surgical replacement
of his left hip Mr Aitken will experience progressively increasing
pain and disability because of his left hip injury and he will be
permanently unfit for any form of employment."

15. He also recommended manipulative treatment of the spinal subluxation. He prescribed anti inflammatory medicine to relieve the arthritis in the hip and right wrist. He referred him to Dr Petroni, clinical psychologist for quantative assessment of any brain damage.

16. Dr Petroni saw him on 25 January 1985. His tests were scored within normal limits and revealed no serious impairment.

17. His solicitors referred him to Dr Corry, rehabilitation consultant. He was then working on a part time casual basis as a mechanic. Dr Corry noted some difficulty with memory. The plaintiff had been about to undergo an operation on his hip at Lady Davidson Hospital and the pre operative physiotherapy had given him relief, so much so that he had decided against proceeding with the operation. Dr Corry did not have enough information to advise on his rehabilitation.

18. While in Perth in January 1986 he suffered an onset of severe pain. He went to the Fremantle Hospital. An appointment was made for him to see an orthopedic specialist, and he was prescribed Naprosyn and physiotherapy in the meantime. He did not keep the orthopedic appointment. He attended for another referral on 8 October 1986. There is no report from the specialist who examined him on that occasion.

19. Dr Kitchin reviewed him on 18 November 1987. He commented:

"This patient has a secondary osteoarthritis of the left hip as a
consequence of a central fracture/dislocation sustained in 1982.
The disabilities he currently experiences have not significantly
changed in the last twelve months. His restrictions are consistent
with the condition of the hip and the present state of affairs is a
consequence of the injury of 1982.
There will probably be deterioration in this hip in later years;
should this arise then this could be treated by a non-cemented total
hip replacement arthroplasty. The indication for this would be
significant increase in hip pain. At present this procedure is not
indicated."

20. Dr Stubbs reported on 23 November 1987 that the plaintiff had been admitted to hospital in September for physiotherapy. It had been decided not to perform a total hip replacement, but to maintain him under review.

21. His solicitors sent him to Dr Cassar for an opinion on 10 December 1987. He advised that the permanent and persisting disabilities related to the badly incapacitated left hip, which required prosthetic correction.

22. Finally, he was examined on 27 May 1994 by Dr Scott, occupational physician. He reported:

"His obvious abnormality was related to his left hip and pelvic
tilt. He stood with his right knee flexed to about 25 degrees
to enable him to stand up straight. When asked to stand
straight with no knee flexion, he complained of pain in his left
low back and buttock, passing into his left groin. His pelvis
was tilted because of leg shortening, and this causes him to
walk abnormally with a limp, in turn causing back pain in his
lumbar and thoracic spine. He was able to squat. General
movement of his left hip joint was restricted in accordance with
his arthritic left hip joint. Lying on the couch, the sole of
his left foot was 2 cm higher than that of his right foot - he
had some 2 cm shortening in his left lower limb.
He walks with a limp, swinging his left leg out, and bearing
most of his weight on his right foot.
Psychological questioning revealed that he had variable memory
abilities, with, reduced long term memory loss. While his
hearing appeared normal, he complained, of tinnitus - a high
frequency continuous noise in his ears.
He realises he smokes a lot (said to be 20 cigarettes a day) and
drinks above average. He feels the MVA has ruled his destiny,
and lowered his self esteem whereby he finds he drinks more, and
has been convicted for "driving under the influence" on more
than one occasion, as well as being sent to prison for driving
without a licence. He feels his problems have had a negative
effect on his abilitity to marry and settle down. He says he
sleeps poorly, and has feelings of impending doom.
Opinion
* There is no doubt the major result of the MVA had been to
produce his left hip disability. This includes shortening of
his left lower limb, arthritic changes, and restricted movement
with increasing pain. Further, it can be anticipated that, if
he continues to walk the way he does, there will be
degenerative arthritic changes in his lumbar spine, and
sacro-iliac joints. In this respect a built up shoe may be a
temporary expedient measure.
* I believe he should consult an orthopaedic surgeon concerning
these aspects.
* Up to date X Rays of his left hip joint and lumbar-sacral
spine are advised.
* He should continue with his back strengthening exercises and
back care program.
* In my opinion he could expect assistance from psychological
counselling, an advice re life style, now and in the future.
* I believe his hip arthritis will progress - a hip joint
replacement would appear inevitable.
* His working capacity is markedly reduced because of his
physical and psychological problems. In this respect it should
be recalled that while he has been a "jack of all trades", he
has minimal overt credentials to enable him to obtain
employment compared with a similar, but not physically
disabled, person. In short his working capacity and
employability are reduced."

23. The plaintiff said in evidence that he intends to have an operation on the hip at some time in the future. The evidence does not enable me to find when that will be. The medical evidence suggests that over the rest of his life more than one operation may be necessary.

24. A letter from Dr Stubbs detailing the cost of a primary total hip replacement was admitted over the objections of Counsel for the defendant, who rightly pointed out that the time at which it was produced gave him no opportunity to check its accuracy or to contest it. I acknowledge the accuracy and force of that objection. But it is better that I should decide this issue on the basis of some evidence rather than none, and the cost of an adjournment would have outweighed the possible amount at issue.

25. On the one hand an award to cover the cost of an operation in the future must discount the present day cost, precisely because it is a payment to be made at some time in the future, which in this case is indeterminate. On the other hand there is a possibility that more than one operation may be needed.

26. I would award $15,000.00 to provide for the cost of future operative treatment.

27. The plaintiff's employment history had been sporadic. He was also unable to give solid evidence about it. His driving record, and his own admissions, show that he had a drinking problem, but I do not think that it was so severe that his intermittent work pattern was due to it. He has skills as a mechanic, and is single, with no real responsibilities. It was by his choice that he spent time on unemployment benefits, working occasionally as he wanted, sometimes as a self-employed casual motor mechanic, sometimes in employment in a wide variety of semi skilled or unskilled jobs.

28. His financial records are meagre, and his memory is not detailed about the times when he was working, the jobs that he was doing or the money that he was earning when he was working.

29. The Social Security documents and Taxation records that are in evidence show that the plaintiff had been on unemployment benefits for 6 months preceding the accident. At one stage of his evidence the plaintiff said he had been unemployed for a year before the accident.

30. Over about two and a half years before the accident he had received unemployment benefits over six periods, of lengths varying from three weeks to six months. He was able to recall some details only of two periods of employment, one of about a month as a scraper driver at Ulan and one, evidenced by a group certificate, when he earned $3,851.00 gross over the period from 13 February 1981 to 29 June 1981.

31. I think the most likely explanation of the gaps in his receipt of Social Security payments, is that he was working casually as a mechanic and informed the Department about his earnings. He did not inform the Taxation Department about them. His reason was that they did not amount to enough to cross the threshold at which tax was payable. Counsel for the defendant rightly submitted that one should be sceptical about accepting such an answer at its face value, but, if accepted, it limits the plaintiff's earning capacity, so far as he was prepared to exercise it, to a fairly small amount.

32. The plaintiff, at the end of his examination in chief, said he was not able to estimate an average of the amount that he received from doing these jobs, but that when he worked for an employer he was paid at about the same rate as when he worked for Tommy Tortoise. That is a figure of between $150.00 and $160.00 per week net.

33. He had some prospects of obtaining employment as a mobile crane driver. I think that he probably had the necessary skills and qualifications. But I do not think that, had the accident not happened, he would have taken constant employment in that occupation.

34. After the accident he still has his manual and mechanic skills, but the constant pain and lack of agility would prevent him from being able to obtain regular employment. As he said, he could drive a mobile crane, but getting on and off it constantly would be beyond him.

35. There are two aspects to that effect of the accident on his abilities. One is the loss of the amenity to work when he wanted to. The other is the financial loss consequent upon it.

36. He was only 32 when he was injured. He is 44 now. There is no evidence that he has other than a normal life expectancy. His injury was severe. The pain has been constant, and will continue to be so, even though an operation may mitigate part of it.

37. For his pain and suffering I would award $85,000.00, of which $25,000.00 would relate to the future.

38. For interest on the past component I would award $12,000.00.

39. The medical expenses are agreed at $424.25.

40. On the night of the accident he was intending to drive to the snowfields to get work of a type that he had been able to obtain there before.

41. I think that he would probably have obtained work without much delay, and would have stayed in it for some months, probably until about the end of the snow season. It is likely that he would then have gone back on to unemployment benefits, and resumed the employment pattern shown by his pre accident history.

42. The particulars filed claim a past loss based on award rates of pay for a crane operator. I am satisfied that the plaintiff might occasionally have obtained some periods of employment as an operator or a dogman, but I am also satisfied that he would not have engaged in that occupation with any regularity.

43. In those circumstances, the award for economic loss is a matter of discretionary judgment, rather than calculation.

44. There are just over 12 years since the accident. The amount that he could and would have earned in that time is to be judged in the light of his employment history, particularly in the two year period leading up to the accident. When he worked for an employer he could earn about $160.00 net a week, in 1982 figures. When he was self employed there is no evidence of what he earned, but I think that $50.00 a week in 1982 figures would not be too far out. And when he chose not to work at all, but to receive Social Security benefits, there would have been no recoverable loss.

45. Over the three and a half years before the accident he received Social Security benefits in respect of just over half the period. He was in paid employment, for which he could give details, for only one eighth of the time.

46. Taking account of a general impression of increases in prices and wages over that period, I would judge a figure of the order of $30,000.00 as being the sort of earnings that he could and would have made over that time.

47. But it also clear that the plaintiff's income earning capacity has not been completely destroyed. He is an intelligent man, and still has mechanical skills. His stated reason for not seeking rehabilitation and retraining is that taking a regular job within his capacity would place his pension at risk. That is a choice for the economic consequences of which the defendant is not liable. He has in fact done some occasional mechanical work for reward for friends and acquaintances.

48. For past loss of income earning capacity I would award $20,000.00. For interest on that component I would award $19,000.00.

49. In assessing the loss of future earning capacity, in so far as it has resulted in loss to him, I think I should approach the task by assuming that he might have continued to be unemployed and not working by choice, for about six months in a year, working in employment for about two months, and doing independent and casual mechanical work for about 4 months.

50. Counsel for the plaintiff conceded that an estimate on that basis of $5,000.00 a year would be generous to the plaintiff. I think that, taking into account his residual earning capacity and normal contingencies, a continuing loss of $50.00 a week gives some indication of the sum that should be awarded.

51. The present value of $1 a week for 21 years at 3% is $816.00.

52. As an exercise of discretionary judgment I would award $40,000.00 for loss of future income earning capacity.

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

Pain and suffering $85,000.00
Interest $12,000.00
Medical expenses $424.00
Future operative treatment $15,000.00
Past loss of income $20,000.00
Interest $19,000.00
Loss of future income earning capacity $40,000.00
Total $191,424.00

54. The defendant's principal contention was that the defendant was not liable at all for the accident, and that the plaintiff was entirely responsible for his own damage.

55. The plaintiff's case was put both in negligence and in nuisance to the highway.

56. Whether as a matter of general principle there is now no real difference between those causes of action is not a question I need to consider in this case. There may well be circumstances in which nuisance would afford a remedy where negligence would not. See Dymond v Pearce (1972) 1 All ER 1142. It seems to me that in the actual circumstances of this particular case the issue to be resolved comes down to the same issue, no matter which legal category is chosen. Before the defendant may be made liable in nuisance it must be shown that in leaving its truck on the road, it was acting unlawfully. That unlawfulness could, in this case, consist only in a breach of a relevant motor traffic regulation or in a failure to exercise reasonable care for the safety of other road users. Precisely the same considerations arise in negligence in the circumstances of this case.

57. The relevant regulation is S.185 of the Motor Traffic Act 1936. A person who parks a motor vehicle at night on a public street in breach of that regulation would wrongfully obstruct the highway. It does not necessarily follow that simply because there was not a breach of that section that unlawfulness could not otherwise be shown, as by a demonstrated danger to other road users in the circumstances of the case.

58. In negligence, breach of the section is prima facie evidence of failure to take reasonable care, but compliance with it does not demonstrate that there was no such failure.

59. It is clear from the evidence of the driver, Mr Logue, and of the police who investigated the accident, that the defendant's vehicle was parked close and parallel to the left edge of the carriageway. Captain Cook Crescent is a very wide boulevard type of road, through a settled residential area in one of the older and inner suburbs in South Canberra. From the shopping centre at Manuka it follows a gentle sweeping curve, and at the scene of the accident it runs approximately north and south.

60. The north and south bound carriageways are divided by a very wide median strip. There is, and was at the time of the accident, a paved break in the median strip, but the only relevance of that for the purposes of this action was whether there was any additional street lighting provided. On the evidence in this case I think it is more likely that there was no additional lighting provided at the site of that break in the median strip.

61. One crucial fact to be decided is the type of lighting that was present at the time of the accident, which happened over 12 years ago. I am left to decide it on the basis of fallible human recollection. I do not know whether either set of legal advisors made any enquiry from the relevant municipal authorities, who could be expected to have some relevant records, but there was no assistance from that source. I can not draw any inference from that absence of expected evidence, because it seems to me that it would have been in the interests of both parties to call it, if it were available.

62. The plaintiff's evidence was that there was a standard street lamp beside the parked truck. By a standard street lamp he meant an older type of lamp on top of a concrete column. There were well established conifer trees all along the footpath on both sides of the street, and on the median strip.

63. Photographs of the scene of the accident taken in November 1985, about three and a half years after the accident, show more powerful types of light fixed to a metal pole, and projecting out over the roadway, well out of the line of trees.

64. The plan prepared by Constable Hatty on the night of the accident shows a street light about 5 metres from the rear of the truck. It does not describe the type of street light, but the position marked on the plan is consistent with the position of the light that can be seen in the photographs.

65. When it was put to him in cross-examination that at the time of the accident the lights were the same as those shown in the photograph, the plaintiff answered, "I am inclined to believe, Master, that the lights have been changed, but I thought they were the type of standard light". Pressed about that answer, he responded, "Well, I am almost certain that they were standard lights, not the overhanging light that they have today."

66. The plaintiff also said in his evidence that he had passed the top of a rise in Captain Cook Crescent and was heading down hill at the time of the collision. I think it is clear from the photographs, and from the evidence of Mr Logue, that the accident happened before he reached the top of the rise.

67. In daylight, or if the lights were as shown in the photographs and the night was clear, the truck, parked as it was, would have been clearly visible to a driver travelling South, probably at a distance of 200 metres, and certainly at a distance of 100 metres.

68. The plan drawn on the night, and the photographs, also demonstrate that the South bound carriageway was divided into two lanes by a broken white line, but the lanes are not of equal width. The lane nearer the median strip is 3.2 metres wide, while that nearer the kerb is 5 metres wide.

69. Mr Linford was called to give evidence for the plaintiff. He had lived in Captain Cook Crescent from early 1982 for about three years. He had from time to time seen the defendant's truck parked in the vicinity of the scene of the accident. His recollection was that the overhead lights were not installed in early 1982. His memory was that the lighting was patchy at the scene of the accident, because the lights were not overhead and the foliage of the trees was lower and more extensive than in the photographs. He claimed to have had the experience of almost colliding with the truck himself one night. He also claimed that the truck was difficult to see because it was dark red and never washed.

70. Mr Linford has known the plaintiff for 25 years, though not as a personal friend. He did not know until later about the plaintiff's accident, and did not make any particular inspection of the scene at any time. He could not identify any particular time when the state of the lighting was changed.

71. Mrs Ash also gave evidence for the plaintiff. In early 1982 she worked at the Boot and Flogger, and used to drive home in a southerly direction along Captain Cook Crescent each night. She also recalled seeing the truck parked on the left hand side. She said, "I was always aware that it was there. You could never actually be certain of seeing it there because it was generally filthy dirty".

72. She also said that the street lighting in the vicinity was poor, because of the trees. She thought the lights were the old concrete pole upright lights, installed amongst the trees between the footpath and the road. She was accustomed to driving in the lane nearer the median strip. She thought the overhead lights might have been installed in 1985 or 1986. She conceded that the position of the light pole shown on the plan was not consistent with its having been the old fashioned type that she had described.

73. Sergeant Armstrong was called to the scene of the accident to investigate the mechanical condition of the plaintiff's vehicle. There was nothing in its condition that shed any light on the cause of the collision.

74. The truck and the scene as depicted in the photographs accorded with his recollection, but his principal duty was to inspect the plaintiff's vehicle.

75. Senior Constable Hatty attended the scene, made measurements and drew the plan which is exhibit A. The photographs accorded with his recollection. He also identified the existing overhead light pole as being in the position that he had drawn on the plan. He could not recall what type of lights were installed. He would have described the lighting conditions as adequate.

76. Sergeant Newton investigated the accident. He and Constable Hatty arrived about 20 minutes after it happened. He described the visibility as good, and said there was good street lighting in the area. He was responsible for entering the relevant information in the traffic accident report. He coded the light conditions as "Dark - good street lighting".

77. Subsection 185(1) of the Motor Traffic Act 1936 makes it an offence to park a vehicle on a public street at night unless certain lighted lamps are carried on the rear.

78. By subsection 185(4) it is not an offence to park a vehicle without the lighted lamps prescribed "if the vehicle is parked under or near a lighted public street lamp or other outside lamp so illuminating the vehicle as to render it clearly visible on a dark night with a clear atmosphere to persons approaching the vehicle at a distance of 200 metres."

79. Sergeant Newton coded the part of the Traffic Accident Report asking, "Were prescribed lamps alight" as "0", that is, "Not applicable".

80. In his evidence he stated that he did not notice anything adverse about the truck or the way that it was parked or the way it was illuminated. If there had been any breach of regulation or if the truck had been in an incorrect position, then he would have made further investigations. I think that is probably very true, since the plaintiff had been seriously injured, and he was in charge of that part of the investigation.

81. The defendant called Mr Logue, the driver who had parked the truck outside the house where he was staying. His evidence was that the truck was used to transport butchers' refuse, fat and bones, and that he steam cleaned it regularly.

82. He was not cross-examined about that, and, in the light of inherent probability that he would not want to travel in a vehicle carrying that sort of cargo if it were not regularly cleaned, I accept his evidence that it was clean in preference to the evidence on the point of Mr Linford or Mrs Ash.

83. He had parked the vehicle so that it was parallel with the footpath, under a street light. His recollection was that the street lights at the time were overhead lights, not the shorter concrete standard lights.

84. In all that evidence about street lighting I think the most significant and trustworthy is the contemporaneous record of the investigating police officer. I also think that Mr Logue was more likely to have paid attention to the state of the lighting in the place where he regularly parked the vehicle than either Mr Linford or Mrs Ash, who were driving past.

85. On the whole of the evidence I am satisfied that there was good overhead street lighting of the type depicted in the photographs in evidence.

86. I am also satisfied on the evidence that the truck was clean, and fitted with reflectors, one on each side of the bottom of the tail gate, and one above the number plate under the tray. The tail gate was red, and the edge of the tray and mudflaps were white.

87. The plaintiff claimed in evidence that just before the collision he drove into a bank of fog. He was travelling at a speed of 70 to 80 k.p.h. He backed off the accelerator, but the collision took place before he could apply the brakes.

88. There was no record that the plaintiff mentioned fog to any doctors when describing the accident, until he gave that version to Dr Cassar in 1987. I do not regard that as significant, as it would not be a fact that would be particularly relevant to a history being taken by the doctor.

89. Mr Logue's evidence was that he was in bed when he heard the crash. He went out immediately and saw the car under the right hand rear of the truck. He remembered the weather as being clear, without fog.

90. Neither Mr Linford, nor Mrs Ash, were able to give any evidence about conditions on the night of the accident.

91. Mr Hirst now lives in Captain Cook Crescent, but did not do so in 1982. He had however been with the plaintiff at the Boot and Flogger on the night of the accident. He left some hours before the plaintiff did. He expected the plaintiff to be following him in a short time to a friend's place in Finnis Crescent in Narrabundah. The route from the Boot and Flogger to Finnis Crescent is along Captain Cook Crescent. He said that the lighting was poor and it was a foggy night. He was driving in the left hand lane and had to swerve to avoid the parked truck. When asked to describe the lighting he said that it was, "Dull and misty in the sense that it had a halo around the light through the mist". He thought he would have been travelling at 60 k.p.h.

92. When shown the photographs he thought that the street lights were brighter in them than he remembered them on the night, as they then had haloes, but they were in the same position.

93. Sergeant Armstrong had no recollection of encountering any mist or fog as he drove to the scene of the accident.

94. Senior Constable Hatty described the weather and visibility as, "Visibility was good. From my recollection it was a clear crisp night."

95. Sergeant Newton, when completing the accident report form, had, in relation to weather conditions, the options, "(0) unknown; (1) fine; (2) light rain; (3) heavy rain; (4) snow or sleet; (5) fog; (6) smoke or dust; (7) other." He ticked (1), for "fine".

96. I am prepared to accept that the plaintiff now believes that he encountered a patch of fog just before the collision, but as a matter of fact I think that the observations of Sergeant Newton and Mr Logue are more likely to be accurate. There may have been some light mist, sufficient to create a halo around lights, but I do not think that fog played any part in causing this accident.

97. The plaintiff had been drinking that afternoon. He claims not to have been affected by alcohol at the time.

98. I should mention in this context that the plaintiff was cross-examined about a number of drink driving offences. They may well have been relevant to the issue of the plaintiff's work capacity. I do not regard them as proper material to rely upon in forming a view about his condition on this particular night. Mr Hirst did not notice anything untoward about his condition. I do not think that on the evidence I should make a positive finding that his ability to drive was adversely affected by alcohol as he drove South on that street that night.

99. Whatever the reason, whether from tiredness, inattention, or the effects of alcohol, he did not see the truck. The plaintiff was driving along a road with good overhead lighting. His own headlights were on. The truck was correctly parked. It was lit by a street light a short distance behind it. The trees did not obstruct that light, or his vision of the truck. It would have been clearly visible, probably at a distance of 200 metres, certainly at a distance of 100 metres. He aware from previous experience that the truck was parked there at night from time to time.

100. If he was driving at a reasonable speed and keeping a proper lookout, the truck should have posed no danger to him at all.

101. In my view, if other road users from time to time were surprised by the presence of the truck, parked by the side of the road, that could well have been caused by their own inattention. In any event, they were able to avoid a collision.

102. Counsel for the plaintiff submitted that Mr Logue was negligent in parking the truck on the road, even if there was good lighting because it was forseeable that a careless driver might collide with it. This submission accepts that the plaintiff was at least partly at fault, and that his fault contributed to his damage.

103. But, it is said, the defendant was also at fault because its conduct generated the very risk of injury which resulted from the negligence of the plaintiff, and that negligence occurred in the ordinary course of things. See, for example, per Mason CJ in March v Stramare [1991] HCA 12; (1991) 171 CLR 506 at 518, 519, and per Deane J at 520.

104. The necessary proximity between the plaintiff and the defendant arose out of the use of the road. Counsel submitted, rightly in my view, that simply because the truck was not parked in breach of any regulation does not demonstrate that the defendant was not negligent. The defendant's driver knew that fogs or mists happen in Canberra in May. He should know that people who drive are sometimes inattentive, sometimes even affected by alcohol. It was therefore forseeable, it was submitted, that the very act of parking the truck on that road at all on that night created a potential for harm to some other road users. Counsel accepted that his submission involved the proposition that the truck should not have been parked on the road at all, at least on that night.

105. It is not a sufficient answer to this submission to point out that the truck in March was parked along the centre line in Frome Street, a six lane thoroughfare, in the city of Adelaide, while we are dealing in this case with a truck parked at the side of a suburban boulevard. In March the truck was parked without any justifying reason in an extraordinary position. In this case the truck was parked in a normal way outside the house where the driver was to spend the night. That also does not determine the matter.

106. But those distinctions do serve to highlight that, as Mason CJ also said in March at 515, "The common law tradition is that what was the cause of a particular occurrence is a question of fact which 'must be determined by applying common sense to the facts of each particular case' in the words of Lord Reid: Stapley."

107. It is also not a sufficient answer to point out that the defendant was permitted to park the truck where it did. There might well be circumstances, related to the type of street, lighting conditions, traffic conditions, even existing or anticipated weather conditions, where a person exercising a legal right to park on a public street might nevertheless be held to have failed to exercise reasonable care for other road users.

108. The speed limit in the area was 60 k.p.h. There were suburban houses on both sides of the street. The lane nearer the kerb had extra width in it, which would accommodate parked vehicles and allow ample room for vehicles to pass by. The plan shows 6 metres from the offside edge of the truck to the median strip. The rear of the truck was between 4 and 6 metres to the South of an overhead street light. There was no tree in such a position that it obstructed the view of the truck, or prevented the light from the street light from illuminating the rear of the truck.

109. In my opinion, as a matter of common sense, in parking the vehicle in that position in those circumstances on that night, Mr Logue did not fail to exercise reasonable care for other users of the road. Nor did the vehicle so parked present a danger to those using the road in the manner in which they could have been expected to use it.

110. I am sympathetic to the grievous injuries suffered by the plaintiff. But I am forced by my view of the evidence to conclude that it was his own inattention, however caused, that led to the collision.

111. There was no failure to take reasonable care on the part of Mr Logue, and the leaving of the truck, in the condition that it was, lit as it was, on that wide street with the long clear vision that was available, did not constitute a nuisance.

112. There must therefore be judgment for the defendant.

113. I order the plaintiff to pay the defendant's costs.