Abedin Vahedian Mazloum v Gayle Maree Rich [1997] ACTSC 45 (20 June 1997)

SUPREME COURT OF THE ACT

ABEDIN VAHEDIAN MAZLOUM v. GAYLE MAREE RICH
No. SC 251 of
1995
Number of pages - 7
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER T CONNOLLY

CATCHWORDS

Negligence - Motor Vehicle Accident - Contributory Negligence - Whether plaintiff failed to keep a proper lookout - Whether plaintiff failed to manoeuvre his vehicle so as to avoid the collision.

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Plaintiff riding motor cycle - Penetrating wound, compound fractures, lacerations and soft tissue injuries to left leg - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 1 CLR 49

HEARING

CANBERRA, 10 June 1997 (hearing), 20 June 1997 (decision)

20:6:1997

Counsel for the Plaintiff: Mr D Kennedy

Instructing Solicitors: Elrington Boardman Allport

Counsel for the Defendant: Mr G Richardson SC

Instructing Solicitors: Phillips Fox

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $104,485.07.

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 5 July 1994 when the plaintiff, who was riding his motor cycle from Canberra to Queanbeyan, was struck by a car driven by the defendant on Bungendore Road, Queanbeyan. Liability was in issue and contributory negligence was pleaded. Both the plaintiff and defendant were resident in New South Wales, and their vehicles were registered in New South Wales where the accident occurred. Nevertheless, no issue was made of this, and the defendant has entered an appearance and defended on the merits.

The plaintiff was born in September 1961 in Mashad, Iran. He completed his education to the equivalent of year 12, and then undertook two years of military service. In 1983 he commenced studies for a degree of Bachelor of Engineering at the University of Mashad. He completed this degree in the normal period of 4 years study, and in 1988 he commenced employment in the Iranian Ministry of Industry. In 1990 he obtained a position in the Iranian Research Organisation for Science and Technology (IROST), which the plaintiff described as an organisation similar in its goals to the Australian CSIRO. He was Manager of the Electronic and Medical Engineering Department in that organisation. The plaintiff married in 1991, and in 1993 he undertook a scholarship examination in Iran in Engineering and English in support of an application to undertake postgraduate study abroad. The plaintiff was successful in his application, and in July 1993 he commenced postgraduate studies at the Australian Defence Force Academy campus of the University of New South Wales towards a Masters degree in electronic engineering.

The plaintiff's tuition fees were paid by the Iranian Government, and he was also in receipt of a stipend from his Government of $14,400 per annum, which was paid twice a year, on successful completion of the previous semester of studies. The plaintiff and his wife found a flat in Queanbeyan, and after some intensive language training at the University of Canberra, the plaintiff commenced his studies. At first he used public transport to get to and from the University, but he said that this proved inconvenient, as he was often working in the laboratories at ADFA long hours. The plaintiff purchased a second hand motorcycle, a 1977 model Yamaha 175cc machine, which he used for transport to and from the university.

The accident the subject of these proceedings occurred on the evening of 5 July 1994. The plaintiff had been studying and was returning to his home. He says that he turned his lights on as he left the university, as it was getting dark, and proceeded to Queanbeyan via the airport road, his usual route. He had gone around a roundabout and was proceeding along Bungendore Road in the left lane as he noticed a car stationary about to leave a service station. The plaintiff says that he was travelling at about 40 kph, which he said was his normal speed, as his motorcycle was small. As he drew level with the stationary vehicle, he said that it suddenly lunged forward and struck him.

The defendant pleaded contributory negligence, alleging failure to illuminate headlights and failure to keep a proper lookout and avoid the collision. The plaintiff was adamant that his lights were on. The police report records the time of collision as 6.20 pm on 5 July. The plaintiff had agreed in cross examination that it was "getting dark" as he left for home, but later said that it was dark. The police report records "darkness" as the prevailing conditions. I accept this evidence, and it is not inappropriate to take judicial notice of the fact that, in July, it is dark by 6.20 p.m. The plaintiff presented as an honest and credible witness, and it is hard to imagine him proceeding without his headlights illuminated on a moderately busy route from ADFA to Queanbeyan via the airport road. It was put to him that witnesses saw him without headlights, which he vigorously denied. In fact the defendant did not give evidence, nor did anyone else in support of this claim. The defendant has clearly failed to establish contributory negligence, and I find that the plaintiff did have his headlights on at the time of the collision.

The plaintiff, who was patently honest, did acknowledge in cross examination that there is always a risk that other drivers will do "crazy things". However, I do not think that this amounts to contributory negligence. He was proceeding at a sensible, indeed slowish, speed in the left lane. He observed a vehicle stationary, apparently waiting for him and other traffic to pass before entering the carriageway from a service station. He proceeded. I do not think that this establishes any contributory negligence, and that to expect him to stop his vehicle on the off chance that a vehicle stationary and apparently giving way will lunge forward is not reasonable. Again, in the absence of any evidence from the defendant, I do not find that contributory negligence has been established, and I find that the plaintiff's accident occurred as a result of the negligence of the defendant in proceeding without taking appropriate care to detect and avoid the plaintiff who was proceeding on the roadway with his headlights on and at a safe and appropriate speed.

The plaintiff said that he was in shock and felt little pain as he was lying under the car immediately following the accident. Police attended quickly, and an ambulance was summoned, which took the plaintiff to the Woden Valley Hospital. Dr Ashman was the orthopaedic surgeon on call that evening, and the plaintiff came under his care. In his report of August 1995 he says that the plaintiff presented with a compound fracture of his left distal tibia and a penetrating injury to his left knee. He was taken to the operating theatre on admission where the left knee wound was debridged and an external fixator was applied. Dr Ashman says that

"...it was apparent at the time of debridgement that there had been a semi-segmental loss of approximately 3cm or cortical bone from the tibia presumably at the accident site."

The plaintiff returned to the operating theatre the next week where a skin graft was taken from his right thigh and applied to the wound on his left lower leg. This wound still displays a very marked scar. The following week he returned to surgery again and a bone graft was taken from his right thigh and packed into the gap at the fracture site.

The plaintiff was discharged following these three operations on 27 July. He had only had one session of physiotherapy, and was effectively immobile. He had to be assisted up the stairs to his third level flat, and remained in bed, able to move with the assistance of his wife to the adjacent bathroom. The plaintiff had to defer his Masters course for the second semester of 1994. He remained under Dr Ashman's care, and was admitted to hospital again in August, where the external fixator was removed, and the leg placed in a substantial cast.

The plaintiff described his injuries and pain with some detachment. A number of doctors whose reports are before me have commented that he minimises his symptoms, and does not overstate pain. I am nevertheless satisfied that the accident and the associated surgery caused considerable pain and distress. Mr Vahedian said that the bone graft was the most painful procedure, with ongoing pain for some months at the site of the donor graft. The plaintiff was on Panadeine Forte for some time, but he has consciously tried to avoid and minimise use of pain killers. I am satisfied also that the plaintiff was considerably distressed and discomforted by the long period of immobility, both with the metal fixator around his knee and then the plaster cast, which remained on until December 1994. In November the plaintiff and his wife moved to a ground floor flat, which allowed him to get out using crutches, which he had been able to use since his cast was applied in August.

Dr Ashman took an x-ray on 21 December 1994 which showed that the fracture was healing satisfactorily, and the cast was removed and he was referred for physiotherapy, which he continued with for some weeks.

The plaintiff was able to resume his studies when the academic year began in February 1995. At this time he was still very restricted in his movements, and used a walking stick. He said that friends would help him with stairs at the campus. Although he was under these difficulties he was able to complete his Masters degree by July 1995.

In July 1995 the plaintiff underwent surgery at John James Hospital to revise the skin graft scar. Dr Ashman reviewed him on 31 July 1995, and said that a scanogram revealed a 6cm shortening of the left tibia at the fracture site. This shortening of his leg has led to some problems with low back pain. Dr McEwin, who reported to the plaintiff's solicitors in August 1996, says that his left leg is about 1.5cm shorter than the right, which interferes with his walking and produces low back pain. He advised the plaintiff to use a built up shoe of about 1cm. This was arranged, and the plaintiff says that this provides some benefit, although he still complains of pain in the back and reduced mobility.

The plaintiff said that the normal course for Iranian post graduate students in receipt of the stipend from the Iranian Government is that, at the successful completion of their Masters Degree, they will have their airfare paid for themselves and their family to return home, and then they may apply again for support if they have achieved sufficient success to apply for doctoral studies. Mr Vahedian had advised the Iranian Embassy in Canberra of his accident. The delay to his studies meant that he missed a six month payment of his stipend. The Embassy was, however, able to arrange an Islamic Loan of $10,000 to provide him with support until his studies could resume with stipend. No interest is payable on this loan, but the capital must be repaid. Mr Vahedian was able to apply for continued support for his doctoral studies directly from Australia, and upon his acceptance by the university his continued tuition fees and stipend have been approved by the Iranian authorities for the period up until the end of 1998, that is for 3 1/2 years.

Mr Vahedian is progressing with his studies towards a Ph.D. in electrical engineering. His research field is in digital imaging, focusing on techniques to improve facilities for video conferencing technologies. His supervisor, Associate Professor Cavenor, said that his project was going well, although he was aware that the plaintiff had some limitations on his movements. The plaintiff said that he felt that he was behind where he had expected to be in his research, and put this down to tiredness which he feels when he has had to engage in physical activities. His research project involves hardware technologies, and so he is often moving about computer and camera devices, and reconfiguring these items. There is a claim that his injuries will mean that his course will not be completed in the 3 years that is notionally set down for the period for a full time Ph.D., but I note that his supervisor himself said that he took 4 years for his doctorate to be completed, and I find from this support for the finding, that is probably a matter of which notice could be taken, that a postgraduate research doctorate can often take longer than planned for any student.

The plaintiff's claim is for damages for pain and suffering, loss of past income to reflect the loss of stipend, and future loss of income both in respect of his delayed entry to the labour force as a result of the disruption to his studies, and a general buffer to reflect his ongoing disabilities.

The principles to be applied in determining compensation in personal injuries cases have recently been summarised by McHugh J in Nominal Defendant v Gardikiotis (1996) 1 CLR 49 where his Honour said (at 54):

"When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred. The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, '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'."

In respect of the claim for general damages, I assess the plaintiff on the basis of injuries to his leg of some severity, necessitating repeated surgery involving skin and bone grafts. These injuries have produced significant scarring, which while it may be amenable to further reconstructive surgery, will remain. Dr Ashman's report in August 1995 said that he expected the plaintiff to experience

"...some pain with physical activity at the lower tibial fracture site for up to two years from his injury and thereafter he should have no long term disability."

Dr McEwin, who examined the plaintiff in August 1996, found considerable ongoing restrictions in movement, which he expected would not further resolve. This is consistent with the views of Dr Cairns, who reported for the defendant in February 1995 and March 1996. He expected a residual disability in relation to the plaintiff's left ankle and hindfoot function in his original report, and confirmed this view in his later report, although he said that this should not adversely affect his employment as a computer engineer. Dr Andrea, who reported for the defendant in May 1996, also noted the restriction in movement in his ankle, although he expressed hope that it may resolve.

The plaintiff's ongoing disabilities present limitations to his movement. He cannot run and walks only moderate distances. He used to enjoy badminton, which he can not longer undertake. He used to cycle, but apart from some time in physiotherapy on a stationary bike, has not felt able to undertake this activity. All of these factors of course sound in general damages. Of greatest concern to the plaintiff, however, is the impact his restrictions place on his religious observance. The plaintiff is of the Islamic faith, and this faith places an obligation on the faithful to engage in regular daily prayer according to a particular sequence. The plaintiff seeks to follow this practice, but finds that his ankle gives him particular problems in kneeling to pray, and in rising afterwards. This is a factor which I have to take into account, although I note that the plaintiff did acknowledge in cross examination that a person's physical disabilities do not prevent them from observing the faith - the obligation being to participate to one's capacity.

I award general damages in the sum of $35,000, with $25,000 being for past loss, generating interest of $1,475, a total award for general damages of $36,475.

The plaintiff's claim for past economic loss is based on his loss of a stipend for one semester, in the sum of $7,200, which I award. During this period the plaintiff obtained an interest free loan of $10,000 to meet ongoing living costs. While he will repay the capital sum of this loan, no interest is payable. He has thus not been deprived of the use of his stipend monies, and I award no interest on this sum.

Out of pocket medical expenses in the sum of $23,541.85 were agreed, and are awarded. Other out of pocket expenses, in relation to taxi fares in the sum of $717 and phone calls to Iran in the sum of $77.58 were not contested, and are appropriate. There was also a claim particularised as $1,650 for the purchase of a 1980 Sigma Sedan and $227 for registration and third party insurance and $227 for transfer of registration for the vehicle. The plaintiff claims that, following his accident he was unable to ride a motorcycle, and needed a car for transport. There is some merit in this claim, but counsel for the defendant pointed out that the plaintiff did receive some $900 in insurance for the damaged motorcycle, and that the purchase of the car was a capital item, which the plaintiff has said that he will attempt to sell when he returns home. He also acknowledged that he uses the vehicle for family transport, and that following the birth of his baby daughter late last year he would have required a car in any event. He would have incurred registration costs for his bike in any event also. Weighing up these factors I award $400 in respect of this claim.

There is a claim for expenses in the sum of $111.64 in respect of costs incurred in the move to a ground floor flat. I find that this is a reasonable claim, and award this sum.

There is also a claim for out of pocket expenses in relation to Medibank Private health insurance from January to July 1995 in the sum of $462. As an overseas postgraduate student the plaintiff is required to take out private health insurance during the period of his studies. This is accordingly a legitimate out of pocket expense reflecting the additional six months that the accident has imposed on the length of the plaintiff's studies, and I award this sum. This amounts to a total award for out of pocket expenses of $25,310.07, which I award.

In relation to future out of pocket expenses, there is evidence that the plaintiff could obtain a substantial improvement in his scar presentation by undertaking a further operation on the site of the scar. This is something that he intends to do, although he will not undertake this until his studies are completed. The cost of this operation has been estimated to be some $5,305. The plaintiff also claims for future medication at the rate of $20 per week for life, a claim for $5,648.40, future physiotherapy for a year to stretch his Achilles tendon and improve ankle mobility at $810, a single future review by a rehabilitation specialist at $200, and $3,640 for future orthotics based on the cost of $50 per pair of shoes. I am not satisfied that the medication claim is made out, as the evidence establishes that the plaintiff has been keen to get off medication, and has succeeded. Otherwise, these types of claims are broadly reasonable. I award $7,500 as a discretionary sum in respect of all of these claims.

The plaintiff's claim for future economic loss is based on a claim for six months of lost salary, based on the plaintiff's delayed return to the labour force, as well as a general buffer claim. The plaintiff's case was that his salary on his return to Iran would be in the order of $45,000 to $50,000 per annum. I do not doubt that this was a genuine belief based on the prevailing exchange rates at the time he first came to Australia. However, evidence from Dr Ghezelayagh, the official at the Iranian Embassy responsible for student affairs, was that the plaintiff could expect a salary of about five million Iranian Rial per month, which with an exchange rate based on the published Financial Review rate for Friday 6 June 1997 of 3000 Rial to the United States Dollar, amounts to a salary of about $20,000 in United States Dollars. I am satisfied that this is the real salary which the plaintiff would expect on his return to Iran. While a person with the plaintiff's qualifications and experience could no doubt expect a higher salary in Australia, the plaintiff was clear in his evidence that he expects to return to his home nation and re enter service in the Iranian Research Institute. The plaintiff clearly regards himself as the beneficiary of his government in coming to Australia to obtain his postgraduate qualifications, and intends to repay that honourably by returning to his country and applying himself to research and teaching. Given this evidence, his future economic loss must be assessed in this manner, rather than against what may be earned in Australia.

While the plaintiff will, as a result of the six month delay, re enter the paid workforce at a later date, he will also continue to receive his stipend up until the end of his studies. While I accept that he has lost one semester of this stipend, which I have awarded in respect to past economic loss, his loss must in fact be the difference between what he would have earned in employment and what he in fact earns by way of stipend. This has been calculated by counsel for the defendant, based on an exchange rate to the Australian Dollar of 2,277.04 Rials, and an effective tax rate in Iran, as a net Iranian salary of $11,200 for six months. The actual loss is therefore $4,000, which I award.

The plaintiff also claims by way of a buffer for future economic loss. His claim is that his ongoing disabilities will restrict his movements and the pain will restrict his concentration, thus rendering him less competitive in his profession. It is acknowledged that the plaintiff, being a clearly intelligent and highly educated man, will most likely succeed in his profession and not have to rely on manual labour. Nevertheless, I find that a buffer type claim is properly made out. I find that the plaintiff will obtain appropriate employment in Iran. However, he will suffer reduced mobility and pain, leading to tiredness and lack of concentration. Dr Ghezelayagh gave evidence that professionals in the Iranian Research Institute were expected to conduct research and teach as part of their employment, but that they were free to engage in some private consulting type work as well. Counsel for the plaintiff argued that Mr Vahedian would be at a disadvantage in this respect.

I award a buffer of $24,000 in respect of this claim. This is a discretionary sum, which may be on the low side were this a claim by a person whose future expectations were in the Australian professional labour market. But I must find that Mr Vahedian's future lies in Iran. A buffer of this nature amounts to just over one year's professional salary when exchange rates are taken into account, which I consider to be appropriate in all the circumstances.

This amounts to an overall award for future economic loss of $28,000, generating a total award of $104,485.07, which I consider to be appropriate in all the circumstances.