John Edward Platts v the Nominal Defendant [1996] ACTSC 87 (16 August 1996)

SUPREME COURT OF THE ACT

JOHN EDWARD PLATTS v. THE NOMINAL DEFENDANT
No. SC477 of 1989
Number of pages - 10
Motor Vehicles - Negligence - Damages

COURT

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

CATCHWORDS

Motor Vehicles - Third Party Insurance - Unidentified Motor Vehicle - Due Search and Enquiry

Motor Traffic Act 1936, s.85

Harrison v Nominal Defendant (1975) 7 ALR 680

Negligence - Whether Bright Lights Attributed to Second Vehicle - Whether

Unidentified Vehicle Caused the Accident - Probability of Plaintiff Falling Asleep at the Wheel - Contributory Negligence - Plaintiff's Duty to Slow Down or Stop.

Evidence Act (Cth) 1995, s.79

R v Gilmore (1977) 2 NSWLR 935
Frye v United States 293 F 1013 at 1014 (1923)
Jones v Dunkel (1958) 101 CLR 278
McKenzie v Hoskins (1939) SASR 410
Middleton v Freir (1958) QdR 351
Sackl v Towers (Unreported, Supreme Court of the ACT, Master Connolly, 21

June 1996)

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Amputated Right Leg - Amputated Left Hand - Fractures to Left Leg - Broken Collar Bone - Subsequent Re-braking of Left Leg - No Issue of Principle.

HEARING

CANBERRA, 22, 23 and 24 July 1996
16:8:1996

Counsel for the Plaintiff: Mr B. Salmon QC and Mr B. Hull

Instructing Solicitors: Wood Fussell

Counsel for the Defendant: Mr L.M. Morris QC and Mr M. McDonogh

Instructing Solicitors: Abbott Tout Harper Blain

ORDER

THE COURT ORDERS THAT:
1. Judgment be entered for the defendant.
2. The plaintiff pay the defendant's costs.

DECISION

MASTER T. CONNOLLY This is a claim for damages for personal injuries arising from a motor vehicle accident that occurred in the early hours of the morning of Saturday 6 February 1988 on Majura Road near the Canberra Airport. The plaintiff suffered very severe injuries resulting in the need to amputate his right leg and left hand.

2. The plaintiff has a very limited recollection of the events of the accident. The claim is brought against the nominal defendant, on the basis that the plaintiff was dazzled by the lights of an oncoming vehicle, and that it was this negligence which caused the accident which resulted in his significant disabilities.

3. The defendant denies that, on the material before the court, it is open for me to find on the balance of probabilities either the existence of a second vehicle, or that such a vehicle, if it did exist, was responsible for any negligent conduct so as to attribute to the nominal defendant responsibility to compensate the plaintiff.

4. The Motor Traffic Act, 1936, provides in s.85 that:

"(3) Where the death of or bodily injury to any person is caused
by or arises out of the use of a motor vehicle in a public street
but the identity of the motor vehicle cannot after due inquiry and
search be established, any person who could have enforced a claim
for damages against the owner or driver of the motor vehicle in
respect of the death or bodily injury may enforce against the
Nominal Defendant the claim which he or she could have enforced
against the owner or driver of the motor vehicle."

5. The only evidence the plaintiff was able to give of the accident was his statement that

"I remember turning into, on Majura Lane, and as I was just
travelling along there, I was just hit with these bright lights."

In a statement to a police officer taken shortly after he had recovered consciousness in hospital on 8 March 1988 the plaintiff had said in answer to the question

"Can you tell me the last thing you remember prior to the
collision?",

"I remember lights, some sort of light just before. The only other
thing would have been cricket practice."

6. Evidence was also given by Mr Clark, a truck driver who was the first person on the scene on the night of the accident and who discovered the plaintiff in his wrecked car. While in opening it had been indicated that Mr Clark would give evidence of a conversation with the plaintiff at the time, in his evidence Mr Clark said only

"Something was said, I don't know what was said. He was moaning
and groaning. Now, somewhere along the line, lights dazzled -
lights dazzled were mentioned to me and I cannot recall whether
it was that night or on a phone conversation I had. This is -
like, I'm not going back - I'm not a young man and I'm not going
back yesterday. This is eight years back."

7. From this evidence I cannot be satisfied even of the existence of a second motor vehicle, let alone that the other driver was responsible for driving that other vehicle in a negligent manner so as to cause the accident. I will examine the factual material surrounding the lead up to the accident .

8. The plaintiff at the time was working for a commercial laundry operation at Queanbeyan. He lived in north Belconnen, and had a long-standing interest in pacing, or trotting. Over the years he had owned and trained a number of horses, but at the time he was phasing out this interest because he was assuming more responsibility in his job, and was hoping to move up to a more supervisory position, where he would have had difficulty in keeping up with his hobby.

9. He gave evidence that it was his normal practice to drive from his home to his rented stables near the trotting track situated at Exhibition Park in Canberra, known generally as the showgrounds. He would leave his home quite early, at about 5 a.m. in order to exercise, feed and groom the horse before going to work at Queanbeyan, where he had to start between 7.30 and 8 a.m. His duties at work involved truck driving himself as well as supervising other drivers and allocating routes and the like.

10. On the day preceding the accident the plaintiff and a group of his colleagues finished their work and then went to a sports ground in Queanbeyan to practice for a forthcoming work cricket game. The evidence establishes that this was a vigorous process. It was a hot afternoon, and the plaintiff and his colleagues were, on the evidence of one of the other players, Mr Howarth, "tired" and "flushed" .

11. Cricket practice continued until just after dark, and after this, at some time around 9.30 p.m. on the plaintiff's case, a group of participants including the plaintiff went to a nearby tavern. It is common ground that the plaintiff consumed a number of full strength beers over the next few hours. His evidence was that it was two or three, Mr Howarth would put it at four middies of full strength beer between 9.30 and 10.45 p.m. when Mr Howarth left the bar. By this time Mr Howarth said that the plaintiff looked tired and was struggling to keep his eyes open. This statement was originally made to an interviewer in September 1989, but was essentially confirmed in Mr Howarth's cross examination.

12. Although Mr Howarth left the pub around 10.45 p.m. the plaintiff stayed on. He says that he left around 11.30, but this leaves a considerable amount of time not accounted for. The plaintiff was discovered at the scene of the accident at around 1 a.m. or shortly before. His watch was broken, and showed around this time. Mr Clark, who was first on the scene, had driven along that same stretch of road about a half an hour previously, when the road was clear, so I find that the accident occurred between 12.30 and 1 a.m. on the morning of 6 February.

13. The plaintiff gave evidence that, driving as he normally did on what was his usual route home from work, it would take about 10 minutes to drive from the sports ground to the scene of the accident, but that his recollection was that he had filled his car with petrol after leaving the bar. Even allowing for this, it follows that the plaintiff must have been at the bar until well after midnight. The evidence establishes that he was, by 10.45, showing obvious signs of tiredness, and had had 4 full strength beers.

14. The accident occurred on an open and clear road which runs along the perimeter fence of Canberra Airport. Majura Road proceeds in a generally northerly direction, and as the plaintiff was driving in this direction, the road veers gently to the west, or left. The accident involved the plaintiff's vehicle travelling in a straight line and leaving the road on the right as the road veers to the left. On the defendant's case, the plaintiff probably fell asleep and failed to negotiate the bend, instead proceeding directly ahead.

15. Evidence as to the level of visibility at night on this particular stretch of road was given by the plaintiff, Mr Clark, the truckdriver who found him, Mr Howarth who drove with the plaintiff, and Constable Cooke. It is clear from all of these witnesses that there is very good visibility of oncoming vehicles in this area. A vehicle travelling north and approaching the point where the plaintiff's vehicle left the road would have had vision of an oncoming vehicle's lights for two kilometres or more on the evidence of Mr Clark, or 2 1/2 kilometres on the evidence of Constable Cooke. This evidence is difficult to reconcile with the existence of lights which dazzled the plaintiff in such a way as to cause the accident, as the plaintiff must have had a long and clear vision of approaching lights at an angle from some distance ahead. This makes this case very different from cases where a plaintiff is dazzled by headlights which appear out of nowhere over a rise or around a corner.

16. Constable Cooke was called by the plaintiff to prove the sketch map of the accident scene which was prepared by the constable and another officer of the Australian Federal Police on the night of the accident. The map on its own is in my opinion of little help to the plaintiff's claim, as the path of the vehicle shown on the map appears consistent with a vehicle proceeding in a straight course north along Majura Road and failing to take the gentle left hand bend, instead leaving the road before attempting to correct. Constable Cooke said in cross examination that he examined the roadway carefully but did not find one piece of evidence to suggest the presence of another vehicle. He said that when he arrived rescue vehicles from the police and fire services were at the scene, and were directing bright halogen style headlights at the wreck where the plaintiff was still trapped. It is part of the defence case that these bright lights may have been what caused the plaintiff's recollection of "lights, dazzle".

17. It was uncontradicted that Constable Cooke has over the years attended hundreds of motor vehicle accidents and examined accident scenes and prepared reports. He was asked, in relation to the wheel marks shown on the sketch plan indicating the path of the vehicle as it left the roadway

"Now, then the first 20 metres of the wheel marks - is there any -
was there anything about the wheel marks to indicate whether the
wheels that put them there were being braked or whether they were
rotating?"

His answer was

"They didn't appear to be braking at that stage, they appeared to
be rotating."

He was then asked

"So, these are the marks that were put there by the plaintiff's
car, they led up to the rear of the plaintiff's car, are they
not?",

to which he answered

"Yes they are".

He was then asked

"And was the position of those marks in that plan and on the
roadway, on the gravel shoulder itself, consistent with a vehicle
travelling north which instead of taking the slight left hand
corner had continued on?"

to which he answered

"Yes, I believe so."

18. Constable Cooke was then asked a question about the likely effect of the vehicle coming into contact with a pothole marked on the sketch plan to which objection was taken, but he was then asked

"During the second 20 metre component of measurement on the plan,
three wheel marks appear. What from your experience does that
suggest as to the path of the vehicle?"

to which he answered

"It indicates the vehicle begins a sideways slide."

19. At this point an objection was taken to Constable Cooke's continuing to give opinion evidence. He was examined on a voire dire as to his expertise on road accidents. I am satisfied that he completed formal training by way of a basic course in the Accident Investigation Course some 11 years ago and has had ongoing training as a member of the accident squad since. During his training he was shown various marks and asked to report on them - these answers were then checked by examiners. He has had many years of experience in such duties since, but he conceded that his opinion has never been accepted as conclusive by a court.

20. Counsel for the defendant urged me that, whatever the past practice on courts in this jurisdiction, the Evidence Act 1995 now permits evidence from persons such as Constable Cooke to be taken into account. Section 79 of the Act says

"If a person has specialised knowledge based on the person's
training, study or experience, the opinion rule does not apply
to evidence of an opinion of that person that is wholly or
substantially based on that knowledge."

I am satisfied that this section does broaden the law in relation to the acceptance of opinion evidence by witnesses with particular experience or expertise. The commentary on this section published by the Commonwealth Attorney-General's Department states

"Under s.79 it is not necessary for an expert witness to be
formally qualified. Relevant experience will suffice. There is no
requirement that the knowledge upon which expert opinion evidence
is based must relate to a 'recognised field of expertise'. The
relevant discretion in s.135 will enable courts to exclude expert
opinion evidence where its probative value is substantially
outweighed by the danger that it might be misleading or
confusing."

21. The learned authors of Cross on Evidence state:

"The s.79 test for expertise is more liberal than the rule applied
for many years in the United States and having some acceptance in
Australia (R v Gilmore (1977) 2 NSWLR 935) that the source of the
opinion be 'sufficiently established to have gained general
acceptance in the particular field to which it belongs': Frye v
United States 293 F 1013 at 1014 (1923). Section 79 requires
merely that there be 'specialised knowledge', and that choice was
deliberate: Australian Law Reform Commission Report 38 para
149(a)."

22. I am thus satisfied that the opinion of Constable Cooke can, pursuant to the Evidence Act 1995, be admitted into evidence, to be considered as part of the evidence in the case. This does not of course mean that the view of a police officer, even one with knowledge and expertise in accident scenes, is in any way conclusive, but it will be material which may be taken into account. Although the point was not argued, it is appropriate to note that any further objection to such material on the grounds either that related to a fact in issue or an ultimate issue, or to a matter of common knowledge, would not succeed as the Evidence Act 1995 has expressly abolished the common law ultimate issue and common knowledge rules by s.80.

23. I ruled that Constable Cooke was able to proceed to give his evidence. He said that there was no sign of the vehicle being braked in the 96 metres of scuff marks, and that the vehicle, based on his recollection and contemporary photographs, appeared to have been still at high speed when it struck the armco barrier before coming ultimately to rest. He was then asked

"So that from the marks on the roadway and the damage to the car,
is it reasonable to assume that the car has been unbraked from the
time it left the sealed surface until its contact with the armco?"

To which he replied

"That's what it appears to have to me."

24. Later Constable Cooke was asked about a conversation which he had with the plaintiff some time after the accident. The transcript records

"And did you say something to him about how you thought the
incident occurred?"
----"Yes, I did."
"What did you say?"
----"I told him that I thought he'd fallen asleep at the wheel of
the car."
"And what did he say about that?"
----"He didn't really say anything at all in relation to that. He
just couldn't remember much about the incident."

25. Counsel for the defendant placed some emphasis on the workers compensation form lodged on the plaintiff's behalf on 30 August 1988 which, in respect of questions relating to the names and addresses as well as make and registration numbers of any other vehicles involved, was answered "N/A". I accept the plaintiff's evidence that this was not in fact filled in by him, and I do not consider this document to represent a conclusive statement that details of other vehicles were "not applicable" in the sense that there were no other vehicles.

26. Considering all the evidence before me I am unable to conclude to the requisite standard of proof either that there was another vehicle or that there was any negligence on behalf of that other vehicle such as to attribute to it responsibility for the accident. While I accept the plaintiff as a witness of truth, his is in reality unable to recall anything about the accident other than the claim of "bright lights". I am satisfied that the vision on the road approaching the scene of the accident was such that the plaintiff must, had he been driving appropriately, have had a clear and unimpeded view of any approaching vehicle whose lights might be in a position to eventually dazzle him. I am also satisfied that there was plenty of clear space on the left hand side of the road which would have allowed a driver in the position of the plaintiff, assuming bright lights, to have safely pulled to the left hand side of the road. I am satisfied that the evidence shows that the plaintiff's vehicle proceeded with no attempt to brake in such a manner that it proceeded in a straight line failing to negotiate the slight left hand bend. The evidence establishes that the plaintiff had been awake since at least 5 a.m., had engaged in vigorous exercise that evening and consumed four full strength beers by about 10.45 pm by which time he was showing obvious signs of tiredness and on the evidence of Mr Howarth was having difficulty in keeping his eyes open. He then remained in the bar until some time between midnight and 12.30 a.m., although there is no evidence concerning the amount of alcohol, if any, that he consumed in this time. The conclusion reached by Constable Cooke, that the plaintiff fell asleep at the wheel, seems the most likely hypothesis to explain the accident, but of course it is not for me to reach such a conclusion. It is however necessary for the plaintiff to establish, on the balance of probabilities, that the accident was caused by the negligence of another, unidentified, vehicle.

27. For the reasons set out above I find that the plaintiff has been unable to satisfy this test. It gives me no pleasure to record this finding, but our community has chosen a fault based system of compensation for road traffic accidents, and in order to obtain an award of compensation for injuries, however severe those injuries may be, it is necessary to demonstrate to the requisite standard of proof that those injuries were caused by the negligence of another.

28. I should add that I would most likely have reached this same conclusion even had the objection to Constable Cooke's opinion evidence have been sustained. Taking the evidence as to the course of the vehicle and the condition of the road as "specific primary facts" I could have inferred that the collision probably occurred as a result of the plaintiff's vehicle continuing on its path and failing to take the bend (cf Jones v Dunkel (1958) 101 CLR 278 per Kitto J at 306, Windeyer J at 319).

29. If I am wrong on the primary issue of liability, that is if the evidence before me, properly considered, were to lead to the view that the presence of another vehicle with its lights on high beam is established to the requisite standard, my conclusions relating to the plaintiff's vehicle would have required me to find contributory negligence.

30. There is authority for the proposition that the duty of a driver confronted with dazzling lights or sun glare is to slow down or stop - McKenzie v Hoskins (1939) SASR 410, Middleton v Freir (1958) QdR 351. A motorist who is dazzled by the sun or bright lights, but who continues on their path without reducing speed or pulling off the road, must therefore expect a finding of contributory negligence, which I would in this case have assessed at 50% (Sackl v Towers, unreported, Master Connolly, 21 June 1996).

31. I was urged by counsel for both the plaintiff and the defendant that, should I find in favour of the defendant on the question of liability, I should nevertheless continue to assess damages. This is appropriate.

32. I should also record that I find that the plaintiff has adequately engaged in a process of due search and enquiry in order to satisfy the requirements of the Motor Traffic Act. I am satisfied that by informing the police of the accident so that Constable Cooke advised the media unit and by placing an advertisement in the Canberra Times the plaintiff has fulfilled the requirements of the Act as explained in the judgment of Barwick CJ in Harrison v Nominal Defendant (1975) 7 ALR 680 at 681ff.

33. It was conceded by Counsel for the defendant that if liability were established, the nature of the plaintiff's injury would give rise to a very substantial award of general damages.

34. The plaintiff's injuries were described in reports of Dr Farnbach of 6 November 1989 and Dr Morris of 3 November 1989. There is no dispute concerning the medical evidence. I will, however, set out in some detail Dr Morris' report. He writes:

"This man was initially seen on 6 February 1988 at Royal Canberra
Hospital. He had been involved in a motor vehicle accident late in
the evening when as the driver of a car, he lost control of the
vehicle which had then collided with armour rail guarding in a
single vehicle collision near Canberra Airport. He had been
trapped in the vehicle at the time but had then been extricated
and transferred by ambulance to Royal Canberra Hospital. On his
admission to Royal Canberra Hospital he had evidence of extremely
severe injuries to his right leg, left hand and forearm and left
leg. He had lost a lot of blood at the time of the accident and
required immediate and sustained resuscitation to survive. He was
eventually resuscitated to the extent that surgery could be
commenced and he was then taken to the operating theatre at Royal
Canberra Hospital. It was evident on examination of his wounds
that he had lost his right limb below his knee with extension
contaminated lacerations extending up and into the right knee. He
had also amputated the fingers of his left forearm with
contamination into the left wrist joint. There was also a compound
comminuted fracture of the left tibia and fibula.

At surgery, Mr Platts underwent an above-knee amputation to his
right leg, a forearm amputation to his left arm and debridement
and application of an external fixateure to his left tibia. This
was an extensive, lengthy procedure lasting over four and a half
hours of operating time. Mr Platts then spent the next week in the
intensive care ward at Royal Canberra Hospital before being
transferred to the ordinary ward. He made steady progress and
overall was in Royal Canberra Hospital for approximately six
weeks. He was then mobilised on crutches prior to his discharge
home. He was then followed up through the Rehabilitation Clinic
and eventually underwent removal of the external fixateure from
his left leg on 13 September 1988. He was progressing fairly
satisfactorily with his rehabilitation after this, however he
sustained a spontaneous fracture through the left tibia
approximately two and a half weeks after removal of the fixateure
and on 7 October 1988, after his readmission to Royal Canberra
Hospital, he underwent open tibial nailing of his left tibia. At
the same time, a fibular osteotomy bonegrafting to the non-union
site was performed.

Post-operatively, Mr Platts made a satisfactory recovery but he
did have a small area of wound breakdown on the front of his tibia
and on 21 October 1988, underwent debridement of the wound and
drainage of the abscess on his left leg. Following this the leg
settled down and continued to undergo consolidation. He was
gradually then commenced on partial weightbearing and eventually
full weightbearing, being monitored through the Rehabilitation
Department at Woden Valley Hospital."

35. In relation to general damages, bearing in mind the ongoing pain and suffering associated with the loss of his arm and leg, and the long period of hospitalisation and rehabilitation, which involved a number of set backs, I would award a sum of $220,000. Half of this is for past loss, resulting in interest of $18,558.

36. In looking at economic loss, I must acknowledge that the plaintiff's remarkable efforts in re entering the workforce and establishing himself as a secretary manager at the Canberra Harness Racing Club to some extent masks his real loss. He commenced this work, clearly on a trial basis, without pay in September 1989, but has progressed so that he was earning net $450 per week by 1994.

37. I find that the plaintiff's particularised claim for past economic loss is made out, being his full pre accident net weekly wage of $377.60 from the date of the accident to 1 September 1989, being $30,963.20 and then the difference between what he would have been earning as a truck driver and supervisor and what he was in fact able to earn. This amounted to $49,920 to December 1995 and $54,720 to the date of trial, resulting in an overall award for past economic loss of $85,683.20, which generates interest according to the practice direction of $51,022.50.

38. In relation to future economic loss, the plaintiff would have expected to continue in his employment to age 65. He faces a real loss of between $150 and $200 per week, assuming that he can continue with his present employment until retiring age. The plaintiff is now nearly 47 and this means a weekly loss of $200 over 18 years which, when appropriately discounted, gives a present value of $145,629. I must, however, factor into an award for economic loss a substantial buffer to recognise that the plaintiff suffers a massive disadvantage on the open labour market. His present employment is, on the evidence, dependent upon his continuing to satisfy the Harness Racing Club Committee, which can change every year. While Counsel for the defendant pointed out that employment discrimination laws would provide some protection to a person in the position of the plaintiff, I must recognise that his present position is not secure, and that he would indeed have difficulties in the open market. I thus would award $200,000 for future economic loss, including a buffer, leading to a total award for economic loss of $336,705.70.

39. Evidence was given of considerable assistance provided by the plaintiff's wife. Given the nature of the injuries I have no difficulty in finding a claim for Griffiths v Kerkemeyer damages made out to the requisite standard. I am satisfied that this assistance was at a very high level indeed, nearly continuous during the early stages of the plaintiff's recovery and rehabilitation, and that the claim for ongoing assistance at the rate of one hour per day is most reasonable. I am also satisfied that the plaintiff's claim for the cost which he has and will continue to incur for a gardener is justified under this head. During addresses Counsel for the plaintiff presented a table of calculations for damages under this head, which I would accept, based on past family assistance of $39,288 and past gardening expenses of $8,287.50. Taking a life expectancy from life tables of 34.39 years an award for future expenses, based on 7 hours of family gratuitous assistance and a weekly gardening expense of $18.75, results, when appropriately discounted, to an award of $117,704.81. I would award $165,280.31 in respect of Griffiths v Kerkemeyer damages.

40. Out of pocket expenses were agreed at $78,620.81 which I award. Evidence was provided by way of a report from the Manager of the Prosthetic Orthotic Department of Woden Valley Hospital in respect of the expected future costs of replacement prosthesis, which have an average life of three years. I am satisfied that this establishes a likely cost of $78,845.73 in respect of prostheses alone.

41. This amounts to a global sum of $898,010.55. For reasons given previously, however, I would in any event have reduced this by 50% in relation to contributory negligence.