Adam Lloyd Castles v Vicki Shirley Burns [1996] ACTSC 45 (24 May 1996)

SUPREME COURT OF THE ACT

ADAM LLOYD CASTLES v. VICKI SHIRLEY BURNS
No. SC640 of 1994
Number of pages - 7
Negligence - Damages - Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER T. CONNOLLY

CATCHWORDS

Negligence - Motor Vehicle Accident - Defendant Executing a U Turn - Whether Defendant Breached Duty of Care to Keep a Proper Lookout - Contributory Negligence - Whether Plaintiff was Speeding - No Issue of Principle.

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Plaintiff Riding Motor Cycle - Extensive degloving injury to Leg - Fractures in Ankle - Significant Scarring - No Issue of Principle.

Evidence - Credibility of Witnesses - Versions of Events Given by Plaintiff and Defendant Irreconcilable - Balance of Probabilities.
Livingstone v Rawyards Coal Co (1880) 5 App.Cas.25 (HL)

Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1
Onassis and Calogeropoulos v. Vergottis (1968) 2 Lloyds Law Reports at

431

HEARING

CANBERRA, 8 and 9 May 1996
24:5:1996

Counsel for the Plaintiff: Mr C. McKeown

Instructing Solicitors: Lesley Anne Christian

Counsel for the Defendant: Mr L.M. Morris QC and Ms C.E. Adamson

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $53,162.33.
2. The defendant pay the plaintiff's costs.

DECISION

MASTER T. CONNOLLY This is a claim for damages for personal injuries arising from a motor vehicle accident on 24 February 1992 when the plaintiff's motor cycle collided with the defendant's hatchback sedan in Sandford Street Mitchell in the Australian Capital Territory. The plaintiff suffered extensive injuries to his leg which required extensive skin grafts and surgical procedures under general anaesthetic, and was undeniably subject to great pain and anguish during his long convalescence. He was absent from work for a period of some 40 weeks, but has made a strong recovery, and has been in full time employment for some years now.

2. The plaintiff was born in 1972 in Gundagai New South Wales, and left school in 1988. He then came to Canberra to find work in March 1989 as a TAB clerk in his mother's Canberra TAB agency. He was working in the TAB agency in the Hellenic Club at Phillip. For the first two years that he was in Canberra he commuted regularly to Gundagai by motor bike on weekends to see his future wife, whom he married in 1994.

3. Following his return to work after the accident, the plaintiff continued to work as a TAB clerk in his mother's employ until the middle of 1995 when, with his brother, he started an orange juice distribution franchise business. They have borrowed some $27,000 for this enterprise, and the business is paying off this loan and providing him with a net income of $380 per week.

4. The defendant denies liability and, in the alternative, pleads extensive contributory negligence so as to substantially reduce damages. It is thus necessary to carefully examine the evidence surrounding the accident in order to determine whether liability is established, and, if it is, whether the plaintiff's own conduct is such as to amount to contributory negligence.

5. The Accident
Both the plaintiff and the defendant gave evidence of their version of the accident, and were subject to extensive cross examination. Their versions varied greatly. On the plaintiff's version of the facts, he was returning to his home at Chisholm having visited a motor cycle shop in Kemble Court, Mitchell. Kemble Court forms a T junction with Sandford Street, and the plaintiff says that he observed the plaintiff proceed over this junction along Sandford Street in an easterly direction as he approached the intersection. He turned into Sandford Street, and was following the plaintiff for about 40 metres in an easterly direction along that street at a "cruising" speed which he estimated at the hearing of about 40 kph. He says that the defendant's cream Ford Laser hatchback was doing about 35 kph, and that he observed it veer to the left of the road. Assuming that the Ford was to turn left at the approaching intersection of Sandford and Brooks Streets he assumed that it was safe to overtake this vehicle on the right. He says that a factor he took into account was that there is no street leading away to the right at this point, although the median strip which divides Sandford Street is broken at this point. As he was passing on the right the plaintiff says that the defendant, with no warning and for no apparent reason, veered right in order to do a U turn, and although he tried to accelerate away, a collision was inevitable.

6. The defendant's version of the facts are very different. She says that she was parked outside the door of a second hand furniture shop in Sandford Street that is east of the intersection of Sandford Street and Kemble Court. If this be true, there is no possibility of her having been observed by the plaintiff driving across that intersection. She says that she intended to proceed the short distance along Sandford Street to the Brooks Street intersection where the break in the median strip would allow her to execute safely a U turn and return to her home in Belconnen. She has a clear recollection that her indicator was on at all times as she slowly entered the carriageway of Sandford Street from her park, and proceeded slowly towards the intersection, still with her indicators on. She says that she was about 1 to 1 1/2 metres from the median strip and some 10 to 15 metres from the intersection when suddenly she heard the very loud roar of a high power motorcycle which had "come out of nowhere". She observed the plaintiff right next to her car, and noticed that he was struggling with the handlebars of his bike which were wobbling. He was at great speed. She says that the bike then lost control and hit her front, the bike and rider then flying some considerable distance before landing some 25 to 30 metres away across the intersection.

7. These two accounts of the accident are irreconcilable. In assessing the credibility of the witnesses Counsel for the defendant urged me to have regard to the advice of Lord Pearce in Onassis and Calogeropoulos v. Vergottis (1968) 2 Lloyds Law Reports at 431 where His Lordship said: "Credibility involves wider problems than mere 'demeanour', which is mostly concerned with whether the witness appears to be telling the truth as he now believes it to be. Credibility covers the following problems. First, is the witness a truthful or untruthful person? Secondly, is he, though a truthful person, telling something less than the truth on this issue, or, though an untruthful person, telling the truth on this issue? Thirdly, though he is a truthful person telling the truth as he sees it, did he register the intentions of the conversation correctly and, if so, has his memory correctly retained them? Also, has his recollection been subsequently altered by his unconscious bias or wishful thinking or by overmuch discussion of it with others? Witnesses, especially those who are emotional, who think that they are morally in the right, tend very easily and unconsciously to conjure up a legal right that did not exist. It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance. And lastly, although the honest witness believes he heard or saw this or that, is it so improbable that it is on balance more likely that he was mistaken? On this point it is essential that the balance of probability is put correctly into the scales in weighing the credibility of a witness. And motive is one aspect of probability. All these problems compediously are entailed when a Judge assesses the credibility of a witness; they are all part of one judicial process. And in the process contemporary documents and admitted or incontrovertible facts and probabilities must play their proper part."

8. I have cited these remarks, not as representing binding authority, but as a useful guide to the process of assessing credibility which is necessary in this case.

9. The plaintiff was at the time riding an unregistered and uninsured motor cycle of very high power, being an 1100 cc Suzuki. He had no motor cycle licence, and indeed had never held a full motor cycle licence. He was a young man of 20. He gave evidence that he had been riding motor cycles since the age of four as he grew up in Gundagai N.S.W., and that he had held a learners permit for a motor bike for some time. While holding this permit he had purchased a number of motor bikes of smaller capacity, and had had this very powerful machine for some time. He says that he had ridden this and other bikes regularly around Canberra and on regular weekend visits to Gundagai. He says that he went to undergo his full licence test on this machine in late 1991, but that the inspector noticed that the front tyre was bald, and refused to permit him to undergo the test. His learners permit was then about to expire, as it seems was the registration on the bike. He says that he then left the bike in his shed, and that this was the first time in three months that he had ridden it, and only for the purpose of taking it to a dealer for possible sale.

10. His conduct in riding an unlicensed and uninsured motor bike, and one that in all probability had a bald front tyre, and doing so while unlicensed, was foolish in the extreme. Indeed, it seems that the ACT is unusual in even permitting a person with a learners permit to ride a very powerful motor bike such as an 1100cc Suzuki. However, this conduct does not establish negligence in the circumstances of this accident. The plaintiff admits that he was wrong in riding the bike, and has pleaded guilty to the criminal proceedings that inevitably flowed from the discovery that he was unlicensed and his bike was unregistered.

11. I am satisfied that the defendant on this day was parked outside the shop. Thus I do not believe the evidence given by the plaintiff that he observed the defendant cross the intersection of Sandford Street and Kemble Court. Given the evidence as to the distance the plaintiff and the motor bike travelled after the accident, I do not accept the plaintiff's evidence that he was travelling at 40 kph at the time of the accident. I note that he told police on the day that he was travelling at 60 kph, and that he conceded in cross examination that he would have said this because this was the speed limit. I find on the balance of probabilities that he was travelling considerably faster than this - particularly in view of the distance he travelled following the collision. On his own evidence he ended up near the signpost opposite the gap in the median strip. This is at least 25 metres from the point of impact.

12. Overall, I accept the defendant's version of events. She presented as a cautious and honest witness, with no interest in the outcome of the case. She had been driving for over 25 years. The plaintiff, acknowledging his status as an unregistered and unlicensed driver, presents as someone with a certain disregard for road rules. His evidence as to the events is improbable and unbelievable. On every contested fact I prefer the evidence of the defendant.

13. This of itself however does not dispose of the case. It means that I find that the defendant was slowly proceeding from a parked position in Sandford Street towards the intersection with Brooks Street with the intention of executing a U turn. She says that she slowed as she approached the intersection because she observed a vehicle coming in the opposite direction, and it would be not safe to turn until this vehicle had passed. While this is not precisely what she said in the contemporaneous statement to police, I accept it as true. She says that as she left her park and as she approached the intersection she looked in her rear view mirror and side mirror and there was no vehicle behind her. I accept this. Her first knowledge of the plaintiff was when she heard a very loud noise, and saw the plaintiff next to her. I accept this, and it follows that the plaintiff must have accelerated very rapidly from Kemble Court into Sandford Street and assumed that he could safely pass the defendant.

14. But even on this very favourable view of the evidence for the defendant, I must find that her failure to observe a speeding vehicle amounts to negligence. A chart tendered in evidence by the defendant shows that the collision took place at least 80 metres from Kemble Court. Even assuming that the plaintiff was travelling at excessive and illegal speed, the defendant ought, had she been keeping a proper lookout, have observed a motor cycle rapidly approaching from her rear with, as the evidence shows, its lights on. Even accepting, as I do, that she was observing oncoming vehicles in order to judge the safe moment to execute a U turn, she was none the less under a duty of care as she executed, or prepared to execute a U turn, to ensure that there was no vehicle approaching from behind that could be cut off in such a manoeuvre.

15. It follows that I find liability. It is also apparent that I find contributory negligence on the part of the defendant to a substantial degree. In matters such as this, where contributory negligence is pleaded, the apportionment legislation requires the Court to find and record the total damages which would have been recoverable if the claimant had not been at fault, and then make any reduction if contributory negligence is established.

16. Damages
The role of the court in assessing damages is of course to find a quantum that will "as nearly as possible get at that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation" (per Lord Blackburn, Livingstone v Rawyards Coal Co (1880) 5 App.Cas.25 (HL)) although as Dixon J has observed, "No doubt it is right to remember that the purpose of damages for personal injuries is not to give a perfect compensation in money for physical suffering. Bodily injury and pain and suffering are not the subject of commercial dealing and cannot be calculated like some other forms of damages in terms of money" (Lee Transport Co v Watson [1940] HCA 27; (1940) 64 CLR 1 at 13).

17. Counsel for the defendant in this matter also drew my attention to the danger, in assessing general damages, for pain and suffering, of asking oneself "For what sum of money would I undergo these injuries?" This is an appropriate warning to heed in this case, because the injuries suffered to the plaintiff's leg were very unpleasant.

18. In assessing general damages I take into account the extent and nature of his injuries, and the pain which resulted, as well as the extensive period of hospitalisation, involving three operations under general anaesthetic, which followed, and the need to undergo two further operations under general anaesthetic to resolve pain in his leg.

19. The injuries are described in a report from Woden Valley Hospital as "A large laceration on the left leg with extensive tissue damage and a deformed ankle ... This wound was described by the surgeon as being an extensive degloving injury."

20. Dr Morris who examined the plaintiff for the purposes of a medico legal report in May 1993 has summarised his condition. He says that "Mr Castles underwent three debridgment operations while in hospital during the subsequent two weeks. These also involved extensive skin grafting with split skin graft taken from his left thigh.

Following this accident Mr Castles experienced severe pain in his leg and eventually underwent separate neurectomies, one near the knee and another near the left ankle, done by Dr Chandran, neurosurgeon. Mr Castles spent, altogether, eight weeks under the care of the community nurse after his return from hospital before returning to work in approximately November/December 1992."

21. The plaintiff gave evidence that he was in 'extreme pain' while waiting for his first operation, which occurred after he had been in the Emergency Department for some 10 hours. He spent the next period in extreme discomfort, taking pethadeine every four hours, "...or sooner - whenever I could talk the nurses into it."

22. He will always have extensive scarring of his leg, which limits the clothing he can wear. The operations have been as successful as could be hoped, but he nevertheless will be limited in his lifestyle and recreational pursuits. The plaintiff gave evidence that he had been a keen sportsman, playing grade rugby league and enjoying golf.

23. I assess general damages at $80,000, $60,000 being for past loss which attracts interest of $5,050.

24. The plaintiff was absent from his employment, which at the time of the accident was a TAB clerk in his mother's employ, for a period of 40 weeks. While this would normally result in a simple mathematical calculation, there is considerable disagreement as to his actual pay.

25. The plaintiff's claim is particularised as being based on a loss of $500 per week. The plaintiff gave evidence that he was paid on commission, at 2% of turnover. This was flatly contradicted by his mother, who said that he was paid an hourly rate. The wages books produced on subpoena and at the hearing demonstrate that his earnings fluctuated considerably.

26. The plaintiff conceded that he was paid an hourly rate, not a commission, but denied inventing the commission claim to rationalise the variations in pay. I accept the evidence of the plaintiff's mother that he had been working at a reduced rate in the period leading up to the accident. His earlier claim of commission pay again goes to his credibility.

27. The defendant has taken the wages books for the period from 1 July 1991 to the date of the accident to calculate a net weekly wage of $154.79. While this is arithmetically correct, I accept the evidence of the plaintiff's mother that he had taken part of this period quietly, and was increasing his hours at the time of the accident. In the preceding week he had earned $250 net. While he claimed that this would have continued to increase, I take this as an appropriate figure to calculate wage loss, resulting in a figure of $10,000. Interest on this amount is $2,450.

28. Calculation of future economic loss must in this case be based on a figure to compensate the plaintiff for limitations to his capacity. He has been in continual employment since his return to work, which is to his credit. He has recently embarked on a small business venture, and his evidence is that this business, which has been operational since July 1995, is now paying off the start up loan, and he takes a net pay of $380 per week. No books or accounts were produced for this business, but I find from the evidence that he has suffered no loss of income.

29. He does, however, have substantial limitations on his future employment. His ongoing weakness to his leg renders him, in the opinion of Dr Morris, unsuitable for heavy work, and limited to clerical type employment.

30. A buffer of $25,000 is in my opinion the appropriate award in this case.

31. There are out of pocket expenses of $10,405.81.

32. This amounts to an overall award of $132,905.81. However, as I have attributed contributory negligence to the plaintiff, the award must be reduced accordingly.

33. Contributory Negligence
In assessing contributory negligence I take into account the finding that the plaintiff, at excessive speed, attempted to overtake the defendant on the right when the defendant was proceeding slowly about 1 to 1 1/2 metres from the median strip of Sandford Street with her indicators on, approaching the break in the median strip with the intention of there executing a lawful U turn. The plaintiff ought to have observed this and drawn the conclusion that it was very unsafe to try to overtake in circumstances which placed himself between the defendant's vehicle and the median strip. When this scenario was put to the plaintiff he said such conduct would be "suicidal". It very nearly was. I assess the plaintiff's contributory negligence at 60%.

34. It follows that I award damages of $53,162.33 to the plaintiff.