Richard Werner Sackl v Cathryan Lorraine Towers [1996] ACTSC 68 (21 June 1996)

SUPREME COURT OF THE ACT

RICHARD WERNER SACKL v. CATHRYAN LORRAINE TOWERS
No. SC853 of 1991
Number of pages - 8
Negligence - Damages

COURT

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

CATCHWORDS

Negligence - Motor Vehicle Accident - Failure to Keep Proper Lookout - Contributory Negligence - Failure to Stop at Red Light - Vision Impaired by Sun.

Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424

Purcell v Watson (1979) 26 ALR 240
Law Reform (Miscellaneous Provisions) Act 1955, Part V

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Loss

of Use of Right Arm - Loss of Earning Capacity - No Issue of Principle.

Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161
Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245
Johnston v Goboly and Anor (unreported, Supreme Court of the ACT,

Master Connolly, 12 April 1996)

HEARING

CANBERRA, 4 June 1996
21:6:1996

Counsel for the Plaintiff: Mr G. Stretton

Instructing Solicitors: Porter Pilkinton Bradfield

Counsel for the Defendant: Mr P. Blacket

Instructing Solicitors: Maliganis Edwards Johnson

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the plaintiff in the sum of $157,331.47.
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 which occurred on 12 March 1988. At the hearing of this matter the major issue between the parties was liability, as it is common ground that the plaintiff has suffered quite substantial injuries as a result of the accident.

2. The plaintiff was born on 1 May 1962, and educated to Year 10 in the Victorian education system. He moved to Canberra in 1978, and had a variety of jobs including removalist, car detailer and roofer, before joining the Australian Public Service. He worked for a period as a clerical assistant before commencing a position with the Australian Defence Force Academy as a Cook Grade 1. He had no formal qualifications as a cook, but had previously held a number of part time jobs in various cafes and restaurants.

3. The plaintiff says that he enjoyed this line of work, and by late 1987 he and his wife had decided to sell their Canberra house and move to Queensland where they would, in partnership with her parents, open a restaurant or cafe business. They did sell their house, and the plaintiff had given notice of his pending resignation prior to the motor vehicle accident.

4. On the morning of Saturday 12 March 1988 the plaintiff left his home in Kaleen at around 7.00 am in order to commence work at the Defence Force Academy kitchens at 7.30 am. He was riding his 450 cc motorcycle, for which he held a learner's permit. He was proceeding along Ginninderra Drive when he collided with the defendant at the intersection of Ginninderra Drive and William Slim Drive. This intersection is controlled by traffic lights.

5. The plaintiff says, and this has not been contradicted, that he has no memory at all of the accident. His first recall is of waking in hospital some two days after the accident. He is thus not in a position to give any evidence as to liability.

6. The evidence of the defendant, and Mr Fox an independent witness, establishes to my satisfaction that the plaintiff collided with the defendant as she was proceeding to execute a right hand turn from William Slim Drive into Ginninderra Drive in accordance with a green traffic light. The plaintiff did not stop at the red traffic light on Ginninderra Drive, and proceeded straight through the intersection against the red light and thus collided with the defendant.

7. It is on this basis that the defendant denies liability. It is not the law, however, that civil liability is determined solely by the observance or failed observance of traffic rules. As the High Court has said, important traffic rules such as give way rules (or in this case the requirement to observe traffic lights) "...are undoubtedly salutary and their breach is deservedly marked with criminal penalties. But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves; nor is the breach of such regulations conclusive as to the performance of the duty owed to one another or in respect of themselves. The common law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case." per Barwick CJ, McTiernan, Kitto, Taylor and Owen JJ in Sibley v Kais, [1967] HCA 43; (1967) 118 CLR 424 at 427.

8. Mr Fox gave evidence that he was driving on Ginninderra Drive at the time of the accident, and had come to a halt at the red traffic light at the intersection of Ginninderra Drive and William Slim Drive. The sun was rising at the time, and he said that he had great difficulty in seeing the lights. He observed the plaintiff proceed past him straight into the intersection. He estimates the plaintiff's speed at about 75 kph. I am satisfied that he was riding his motor cycle at or under the speed limit which, for that part of Ginninderra Drive, is 80 kph. While the plaintiff is unable to give a recollection, it seems reasonable to assume that he did not see the red traffic light because of the rising sun. He was, however, familiar with the intersection, knew that it was controlled by lights, and must have observed Mr Fox's vehicle stationary at the intersection.

9. These are strong arguments for the defendant. It emerged from Mr Fox's evidence that his stationary vehicle could well have obscured the plaintiff from a vehicle that was commencing a right hand turn from William Slim Drive. In such a case it could well be said that there was no liability placed on such a driver.

10. But the evidence of the defendant, who impressed me as a truthful person who was trying to be as frank and truthful as possible, was that she did not look right before commencing her turn. She said that she observed the lights change, and proceeded to turn through the intersection. In effect, she was assuming that because she had a green light it was safe to proceed without looking for oncoming traffic. Common experience suggests that this is not so. As Gibbs J said in Purcell v Watson (1979) 26 ALR 240, "The assumption that other users of the highway will act reasonably and safely is so often falsified that it cannot be said as a general rule that a user of the highway can reasonably act on that assumption".

11. The common law obligation to take reasonable care is not answered by saying simply that a traffic light was green. A driver stationary at a traffic light which changes to green should, in exercising reasonable care, make some observation before proceeding. On her own admission the defendant did not do this, and so I find that she failed to take such reasonable care as the law requires. Whether, had she looked right, she may or may not have had her view of the plaintiff obstructed by Mr Fox's stationary vehicle, becomes irrelevant. Liability is thus established. The plaintiff's conduct, of course is highly relevant to the question of contributory negligence.

12. In a matter such as this, where contributory negligence is pleaded, the procedure to be followed is laid down in the apportionment legislation. That is, the court shall find and record the total damages which would have been recoverable if the plaintiff had not been at fault, and then make any reduction if contributory negligence is established (Law Reform (Miscellaneous Provisions) Act 1955, Part V). Accordingly, I will consider and assess damages before dealing with the issue of contributory negligence.

13. The plaintiff was admitted to Calvary Hospital following the accident. His complaint at the time related to pain in his right arm, and an inability to move his arm. He was x-rayed, and this showed a fracture of the right scapula. His lack of sensation and movement in his arm led to referral to a neurosurgeon, who diagnosed an almost complete avulsion, or tearing away, of his right brachial plexus. This is the nerve which controls the movements of the arm. In a report of 18 March 1988 Dr Fleming of Calvary says "This patient was involved in a motor vehicle accident on 12.3.88. In the course of this accident he sustained a fractured right scapula but, more importantly, an almost complete avulsion of his right brachial plexus. He has been seen by the Neurosurgeon who agrees with this diagnosis and has given an extremely poor prognosis. Physiotherapy has been commenced and will need to be continued for a considerable time." In a further report of 12 May 1988 to the plaintiff's employer, Dr Fleming said "We formed the opinion that the prognosis of recovery of any significance was extremely remote."

14. The plaintiff and his family proceeded with their move to Queensland shortly after the accident, and he has been treated by Dr Coleman, a Wickham Terrace Orthopaedic Surgeon. In his report of 13 September 1988 he said "On examination he had a flail right arm and was wearing a brace from his right shoulder to his fingers. There was marked wasting of the muscles of his arm but he did have some function of the flexors and extensors of his fingers and wrist......On the 2.7.88 the brachial plexus was explored. A traction injury was found at the C5/6 level just proximal to the suprascapular nerve. A large neuroma was present and this was resected. Cable grafts were inserted across the neuroma following resection to restore continuity of the brachial plexua.......He suffered a severe paralysis of his right arm. The long term prognosis at present is guarded as the general outcome of these injuries is poor. Following nerve grafting however there is a chance of recovery of flexion of his elbow and movement of his shoulder."

15. Dr Coleman has reviewed the plaintiff on a number of occasions, but his opinion remains that there is unlikely to be improvement and that no further surgical intervention is likely to benefit the plaintiff. He assesses his injury as resulting in around 75% loss of function in his arm. He has encouraged exercise for the plaintiff, which he has undertaken, but there is a very noticeable muscle wastage in his arm despite all his efforts.

16. In relation to general damages, I assess this on the basis of his suffering what the defendant has accepted is a severe injury to his arm, which resulted in hospitalisation and a later, unsuccessful, surgical intervention. I award $80,000 by way of general damages, $40,000 being for past loss resulting in an interest component of $6,600 to date.

17. Rehabilitation reports provided to Comcare demonstrate that the plaintiff has tried hard to adjust to his injury. A report by Ms Franzen, rehabilitation counsellor of 29 November 1989 described his physical limitations and concluded "Despite these severe limitations, he remains even tempered and optimistic regarding his day to day activities and his future prospects."

18. He has undertaken some training in the retail field, but was unable to obtain employment. His treating general practitioner has described him as now being "virtually unemployable".

19. The plaintiff gave evidence that he has been seen by a number of doctors at the request of the defendant's insurance company, but no reports were produced. Counsel for the defendant argued that the plaintiff has a residual work capacity, but has produced no evidence to justify this. Taking the medical evidence before me, I must conclude that the injury suffered by the plaintiff has very nearly rendered him unemployable. The plaintiff has indicated that he would like to engage in some small business enterprise with his wife, involving perhaps a sports store, and he feels that he could cope in this type of enterprise.

20. The plaintiff has a limited education, and had previously worked in manual occupations which are no longer open to him. He worked as a base grade cook, but has no formal qualifications in this field. He was right handed, but has now lost the use of his right arm. He has worked for a period as a clerical assistant in the public sector, and I would accept that this type of occupation would remain theoretically open to him, but he would not be able to cope with keyboard duties, which are increasingly important.

21. The plaintiff claims a past wage loss for the eight year period since the accident of $162,373.19, based on the assumption that he would have continued in his employment as a cook but for his accident. There is a difficulty with this approach, as the fact is that he had resigned his employment, and was intending to commence a speculative business venture in Queensland. No doubt his expectation was that this would be more remunerative than continuing as an employed junior chef, but of course there is an element of risk to such a venture. In all the circumstances, I will accept the modest Cook Grade 2 wage level as an appropriate touchstone for the plaintiff's loss in this past period.

22. On the evidence before me I accept this claim. He has received incapacity payments from his employer of $147,840.36. This means interest is payable based on the difference for the period between the accident and this decision. The difference between his actual income and his loss is $14,532.83, leading to an interest award of $8,400.

23. He has paid tax on his compensation payments, and I am satisfied that he is entitled to an award on the principle of Fox v Wood of $17,318.26.

24. The plaintiff claims an ongoing wage loss to age 65 at the rate of $445.13 per week. Given that he had in fact resigned from his public service employment, this is not the type of case where a simple arithmetic approach can be taken to future wage loss, even if total incapacity for any form of work was established.

25. The defendant submitted that the plaintiff should be assessed as having "about a 50 per cent impairment of his earning capacity", but produced no evidence in support of this. The plaintiff did however confirm in cross examination that he has indicated to doctors his interest in becoming self employed, possibly in running a sport or leisure type store. He agreed that, with his wife's assistance, he could run this type of business.

26. I am unable to accept that the plaintiff is totally unemployable for the rest of his life. He does have a substantial disability in that he has only very limited use of one arm, but he is otherwise fit and active. He can drive a car.

27. If I was to accept the plaintiff's claim based on a complete inability to work, the present value of a weekly loss of $445 for 31 years, based on a discount rate of 3%, is some $471,000. Applying the normal 15% for contingencies, this would result in an award of some $400,000. I am not, however, satisfied that this is made out, for the reasons stated above.

28. As a matter of discretion I award the sum of $200,000 for future income loss. This can be derived in two ways - as either a very substantial discretionary buffer or as representing about one half of the notional total loss of income. In assessing this sum I take into consideration the fact that he has been awarded a lump sum impairment award of some $50,000 by Comcare.

29. There is a very substantial claim for Griffiths v Kerkemeyer damages. The plaintiff claims 4 hours per day assistance from his wife for the first 12 months following the accident, at a rate of $10 per hour amounting to $14,560, and 7 hours per week thereafter, at $12 per hour to the date of trial, amounting to some $30,000. There is then an ongoing claim at 7 hours per week at a cost of $15 per hour for life, a claim of well over $200,000, resulting in a total Griffiths v Kerkemeyer claim in the order of $250,000.

30. The plaintiff gave evidence that he had reduced mobility, as would be expected with only partial use of one of his arms, but agreed that he could perform a range of household tasks. He admitted that he could use a petrol whipper snipper to keep down weeds, but said that he could not mow the lawn, although in a report from one of his doctors he has referred to lawn mowing as a duty he can perform.

31. The 7 hours per week is based on contributions by his children around the house. These might well be seen as normal "chores" that it is customary for children to assist in.

32. The defendant did not extensively cross examine on this head, and in submissions, Counsel for the defendant said "There is no real dispute between the parties concerning, if he is entitled to a verdict, his entitlement to some assistance from Griffiths v Kerkemeyer and I did not cross examine him to suggest that that was unreasonable."

33. I am not prepared to accept this as a concession and merely allow the claim as particularised. In order to establish a claim for Griffiths v Kerkemeyer damages it is necessary for the plaintiff to establish to the relevant standard of proof, being the balance of probabilities, the reasonable need for the services claimed. As Brennan J (as he then was) put it in Nguyen v Nguyen [1990] HCA 9; (1990) 169 CLR 245 at 249: "The test of reasonable necessity to satisfy the needs created by the loss draws upon contemporary social standards and expectations as well as the particular circumstances of the case".

34. It is not enough, in my opinion, to baldly state that, because a plaintiff can do no remunerative work, they require domestic assistance, or to rely solely on guesstimates of assistance from family members. As I said in Johnston v Goboly and Anor (unreported, 12 April 1996) in a claim which on the face of it was for damages approaching $1 million, "I would expect, where damages of this magnitude are sought, that a detailed expert assessment of the plaintiff's real needs would be prepared, presented to the Court, and made subject to cross examination."

35. The plaintiff can drive his car, and engage in a range of activities. I accept that he has required a greater level of assistance from his wife in the period immediately after the accident, and that she and his children continue to provide him with support. But I also must find that he remains a fit, active and relatively independent young man, in stark contrast to the plaintiff in Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, who was rendered a quadriplegic, "...wholly unable to look after himself. He has no control of his lower limbs or trunk, he has limited control of his arms but none of his hands which remain permanently clenched. He cannot feed himself even with the aid of a special spoon. He cannot bathe or dress himself, clean his teeth or shave. He has no control of his urinary or excretory functions. He has no sensation below the shoulder line and is therefore liable to injury if force is applied to his body. He uses a special chair which he cannot operate himself, although he will be able to operate an electric chair if, but only if, a house is specially built for his needs. He suffers from repeated spasms and cannot be left alone at night ..." (Griffiths v Kerkemeyer, supra per Mason J at 182).

36. I cite this litany of misfortune from the leading case to try to assess this claim against Brennan J's test of "contemporary social standards". There is a world of difference between the circumstances of the present plaintiff and Mr Kerkemeyer. This does not mean that Mr Sackl has no claim, but it does raise serious concern in my mind about a claim for nearly one full day per week of care at commercial rates. I do not find that this has been made out.

37. As a matter of discretionary judgment I award the sum of $30,000 to cover all aspects of Griffiths v Kerkemeyer loss.

38. Out of pocket expenses I award at $74,634.43. At the hearing of this matter there was a clear error on the out of pocket calculations, and I have derived this figure from additional material provided after the hearing by the plaintiff's solicitors from Comcare and copied to the defendant's solicitors.

39. There is a clear need for ongoing massage and physiotherapy, as well as general practitioner expenses. I assess these at $40 per week, which based on his life expectancy, generates a present value award of some $50,000, which I award.

40. This would, in the absence of contributory negligence, result in an award of $629,325.88. I must, however, apply a very substantial reduction to this by way of contributory negligence.

41. The presence of contributory negligence was not disputed by the plaintiffs, and indeed on the facts, it could not be. In submissions the plaintiff suggested a contributory negligence factor of 50%. I cannot accept this. The plaintiff's evidence establishes that he was familiar with the intersection and knew that it was controlled by traffic lights. While he can give no evidence himself of the circumstances of the accident, I am satisfied that he ought to have observed the traffic lights themselves, and Mr Fox's stationary vehicle. Even if the rising sun was a problem, a motorcyclist blinded by the rising sun cannot be said to have acted with due care by simply riding on.

42. In Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424, which the plaintiff relied upon to establish that a duty of care was owed by the defendant even though she was proceeding through an intersection in accordance with the road rules, the Court accepted a finding of 75% contributory negligence on the part of the party which disregarded the give way rule. This is, in my judgment, appropriate in the present case.

43. I thus reduce the nominal award by 75%, resulting in final judgment for the plaintiff in the sum of $157, 331.47.