Michel Andre Galbes v Cameron Fraser Anderson [1997] ACTSC 63 (4 September 1997)

SUPREME COURT OF THE ACT

MICHEL ANDRE GALBES v. CAMERON FRASER ANDERSON
No. SC 208 of
1993
Number of pages - 10
Negligence - Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER CONNOLLY

CATCHWORDS

Negligence - Contributory negligence - Motor Vehicle Accident - Personal Injury - Plaintiff pedestrian - Defendant driving motor vehicle - Plaintiff and defendant classmates - Plaintiff stopped on roadway waving his arms at defendant's oncoming vehicle - Defendant's vehicle hit plaintiff - Whether plaintiff and defendant were "clowning around" - Last Opportunity Rule - Application of the Rule given the introduction of Apportionment Legislation.

Alford v Magee [1952] HCA 3; (1952) 85 CLR 437

Carruthers Bros Pty Ltd v Pennell [1964] HCA 27; 110 CLR 459

March v E & MH Stramare Pty Ltd & Anor [1991] HCA 12; (1990-91) 171 CLR 506

Podrebersek v Australian Iron & Steel [1985] HCA 34; (1985) 59 ALR 529

Balkin & Davis, Law of Torts (2nd ed) Butterworths, 1996.

Damages - Assessment - Personal Injury - Motor Vehicle Accident - Fractured right leg resulting in shortening of limb by 1.5cms - Scarring - Injury to low back - Whether low back pain attributable to accident - No Issue of Principle.

Nominal Defendant v Gardikiotis (1996) 1 CLR 49

Paulin v Stott (unreported, Supreme Court of the ACT, Miles CJ, Gallop and Higgins JJ, 3 February 1997)

HEARING

CANBERRA, 28 April, 13-14 and 25 August 1997 (hearing), 4 September 1997 (decision)

4:9:1997

Counsel for the Plaintiff: Mr D Kennedy

Instructing Solicitors: Elrington Boardman Allport

Counsel for the Defendant: Mr R Crowe

Instructing Solicitors: Deacons Graham & James

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $171,636.49.

2. Costs reserved.

DECISION

MASTER CONNOLLY

This is a claim for damages arising out of a motor vehicle accident which occurred on the evening of 22 June 1992. The plaintiff was crossing Constitution Avenue in Reid in the Australian Capital Territory when he was struck by a vehicle driven by the defendant. That the defendant was driving a vehicle which struck the plaintiff is not in dispute, and to that extent primary liability is admitted. The defendant however raises contributory negligence as a defence. It is the defendant's case that the plaintiff and the defendant and some other young men had all just completed a course at the Reid College of Technical and Further Education in bar work, and were all in high spirits planning to go out and celebrate. The plaintiff and another student were crossing the road, to get to their vehicles parked opposite the TAFE, and the defendant and two other students were in the defendant's vehicle, which had been parked in another carpark, and were already driving in the direction of the bar where they were all to meet. On this version of events the defendant was flashing his headlights at the plaintiff and another student, who were standing in the road waving at the defendant. The defendant assumed they would get out of the way, and the plaintiff and another assumed the defendant would stop. It was, on this version, a case of high spirited foolishness, with the unfortunate consequence of the accident occurring.

The plaintiff rejects this version of events. He agrees that it was arranged that the twelve or so members of the course would get together after the final class in a city bar, and says that he was crossing the road with a colleague, Mr Mendoza. He says that they had nearly crossed the road when he realised that he had dropped his car keys. He says that he then turned around and returned to near the centre of the road, where he saw his keys glistening in the streetlight. He bent and picked up his keys, and saw lights approaching. He says he had no idea who was in the approaching car. He denies that the approaching vehicle was flashing its lights. He says that he signalled with his hands, waving them above his head so as to alert the vehicle to his presence on the road. The vehicle did not slow, and struck him.

Mr Mendoza confirmed that he was crossing the road with Mr Galbes. He says that he was slightly in front of the plaintiff, by a couple of steps. He says they were talking as they crossed, but he cannot recall what it was about. He says that as he was close to the kerb on the other side of the road he saw a four wheel drive vehicle turn from the other car park and proceed towards he and Mr Galbes. He recognised the vehicle as belonging to the defendants, and he observed that the lights were flashing at them. He was waving at the vehicle, standing on the road, and then stopped waving and proceeded to the grass verge. He was not watching Mr Galbes, who had been behind him. The next thing he heard the noise of the impact. He went to Mr Galbes' assistance. In an important piece of evidence, which the plaintiff says supports his version of events, Mr Mendoza was asked

"Did you then go to his assistance?---That's correct.

And did you say anything to him?---I asked what happened.

And what did he say, if anything?---The first thing he said, he dropped his keys."

Mr Mendoza agreed that he was waving his arms at the vehicle in a jovial and high spirited fashion.

Mr Anderson, the defendant, said that after the course had finished he went to his vehicle with Mr Harding and Mr Vander Wal, who were at the time fellow students of his at the Australian Academy of Sport swimming programme. Mr Vander Wal was in the front passenger seat and Mr Harding was in the back. It is worth setting his evidence out in some detail.

"Well, what did you see when you turned into Constitution Avenue?---I cant really say if it was as I was turning, or once I'd got into Constitution Avenue, but I saw some friends who I was doing the bar course with crossing the road, further up.

Yes?---It was probably three of four of them, at the time, and we were all going to the same place, that's when I started flashing the lights.

Right, and when you say flashing the lights, what did you do?---Well, there's a little button on the floor which flashes the lights in that particular vehicle, so I turned that on and off a couple of times. And they were waving back at me."

He then continued

"Did you recognise who they were, at that stage?---Yes.

And what were they doing? What could you see them doing?---They were waving at me, arms above the head.

Right, both of them?---Yes.

And what did you do then?---I proceeded to drive down the road.

Right, were the two persons that you could see, did they remain in your observation?---Yes.

And what happened, as you got closer to them?---The same thing, they were just waving their arms.

What did you do?---I kept on driving.

Did you keep on driving, even as you got close to them?---Once I got to a certain distance away, I slammed on the brakes, when I realised that they weren't moving.

And what happened then?---Then I hit Mr Galbes.

Now during the time from when you first saw Mr Galbes standing and waving, did he change his position, at any time, between that moment and the moment the vehicle struck him?---Not that I can recall."

It is clear from this evidence that the defendant has made what amounts to admissions in relation to his liability. These were reinforced in cross examination, where he agreed that he was "skylarking" and "engaging in some tomfoolery, and not concentrating on what you were doing". Nevertheless, his version is inconsistent with Mr Galbes' version of events, in that he says that Mr Galbes was standing and waving, and not bending to pick something up. He was clear on this point in cross examination, and said

"No, if I'd seen somebody bending down and stopping in the middle of the road I would have stopped. I wouldn't have assumed that they were moving out of the way if someone was bending down."

A statement made to police by Mr Harding on the night of the accident was tendered. Mr Harding died of a heart attack in February 1996, and no objection was made to the tender of the statement. He said

"We were in the second lane and travelling at approximately 30/40 km/h as we had only just left the traffic lights about 50 metres away. I saw Ismael Mendoza and Michael in the second lane, walking towards the southern kerb. Ismael kept walking and was at the kerb but Michael stopped in the second lane, faced in our direction, and waved his arms about in a jovial manner. At that time we were about 15 or 20 metres away from Michael and thought that Michael would move out of the way as we got closer. We were about 10 metres from Michael when it became apparent that he was not going to move out of the way. Cameron then commenced to brake and swerve left towards the first lane to try to avoid Michael but at the same time Michael appeared to begin to move out of the way towards the northern kerb but the right hand side of the vehicle collided with Michael."

Mr Vander Wal gave oral evidence. He said that he saw the plaintiff clearly proceeding across the road with Mr Mendoza. He said the plaintiff proceeded to just past the middle of the road, and was waving his arm. He said he was happy and smiling, waving with his arms above his head. He says that he kept him under observation, and that he did not see him bend over to pick anything up.

On all of this evidence, I would favour the defendant's version of events. It is consistent with all of the other versions apart from the plaintiff's. The plaintiff's version, which denies the flashing lights, is clearly wrong in this respect. There is no support for the view that he bent down to pick up his keys. While Mr Mendoza's state of mind is of course no evidence as to the plaintiff's, he clearly was taking part in a light hearted and jovial game of waving to oncoming friends. Mr Vander Wal's description of the plaintiff is consistent with this version.

The defendant submitted in evidence the hospital admission notes taken at Woden Valley Hospital. The plaintiff says he has no recollection of what he said at the time, and he was clearly in great pain. He had also been given morphine in the ambulance, which is recorded in the notes. Dr Stubbs said that this would lead to a level of confusion. Nevertheless, the notes record some accurate personal details which must have come from the plaintiff in relation to his allergies and other health complaints. It then records

"@ 2045 playing with mates from TAFE standing in middle of road, egging driver of 4WD on - driver expected pt to jump out of the way at last minute pt did not - low velocity injury struck by bullbar of 4WD on R femur."

This version of events, which I find must have come from the plaintiff, supports the version of events contended for by the defendant, and is inconsistent with the plaintiff's version of events. The defendant had visited the plaintiff at the hospital on the night of the accident, but he was quite clear that he had not spoken to any medical staff. I find that the statements recorded in the notes came from the plaintiff.

Mr Anderson says that when he did get to see the plaintiff that night, and I accept that this again occurred after the plaintiff had received morphine, and when he was no doubt in considerable pain, he apologised to the plaintiff, and the plaintiff said

"Don't worry, it was my fault and I've told the police that."

While I accept that the plaintiff has no recollection of this conversation, and that he must have been affected by his pain and his medication, it further goes towards establishing the veracity of the defendant's version of events. I note however that there is no record of any conversation the defendant had with police on the night of the accident.

Constable Besant, who had interviewed the defendant and others on the night of the accident, attended the Woden Valley Hospital on 29 June, a week after the accident, and spoke with the plaintiff. In that record of conversation, the plaintiff said that he had dropped his keys, and had turned to pick them up when he noticed a four wheel drive approaching. He says that he picked up his keys and then waved his hands to make the vehicle stop. He denied the version of events put forward by the defendant, and taken from statements by other witnesses, when it was put to him.

Taking all of the evidence into account, I am satisfied on the balance of probabilities that the plaintiff was standing in the road waving at the defendant in a jovial manner, consistent with the versions of the other witnesses, and the statement taken at the hospital and recorded in the admission notes. While he denies this under oath, and denied this in a conversation with police one week after the accident, the weight of evidence to the contrary, both under oath and subject to cross examination and otherwise, leads me to reject the plaintiff on this point. I should add that in so doing I am not forming any conclusion that the plaintiff is consciously lying. He was involved in an accident which caused a serious injury. He was undoubtedly subject to a great degree of pain, and he received painkillers immediately after the accident. He underwent major surgery under general anaesthetic shortly after the accident. I have no doubt that he believes that he was looking for his keys at the time of the accident. But the weight of the evidence compels me to find otherwise. This establishes the basis for a defence of contributory negligence. It is appropriate is these circumstances to consider the question of damages, and then to apportion such damages in accordance with findings as to the respective degrees of negligence.

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 determining the appropriate quantum of damages, it is appropriate to set out the medical consequences of the accident, and the impact the accident has had on the plaintiff's ability to earn a living.

The plaintiff was conveyed by ambulance from the accident scene to Woden Valley Hospital. He was administered morphine but was conscious on admission. I have no doubt that he was in very considerable pain. He was very bruised, and had a fracture of the right femur. This was operated on the next day, under general anaesthetic, and the femur was immobilised by a nail and screws. He developed a deep venous thrombosis after some time in hospital, and had to be placed on anti coagulant treatment for some weeks. He was discharged from hospital on 13 July using crutches, and commenced physiotherapy on 19 August at Calvary Hospital. A CT scan shows that his right leg is now shorter than his left by about 1.5 cm as a consequence of the accident and the fracture. He returned to hospital in January 1994 when the pin was removed from his femur, again under general anaesthetic, and he was hospitalised for about a week. He continues to have instability in his right knee.

The plaintiff complains of lower back pain. He has been diagnosed with a bilateral pars interarticularis defect at the L4 level, which all doctors agree can cause pain to the lower back as complained of by Mr Galbes. There is a conflict in the medical evidence, however, as to the relationship of this condition to the accident. Dr Stubbs, an orthopaedic surgeon who examined the plaintiff for the defendant was strongly of the view that this was a developmental defect, rendered symptomatic by the plaintiff's obesity. The plaintiff is a man of considerable size, weighing at or about 145 kilos since well before the accident. Dr Stubbs said that, if this condition were rendered symptomatic by the trauma of the accident, it would have been immediately apparent upon impact, or, accepting that a degree of masking may take place while the plaintiff was undergoing surgery and immediate recover for the broken leg, it would become immediately apparent by way of strong pain upon first becoming ambulatory. The plaintiff's evidence is that he in fact began to notice symptoms some time after the accident.

The first recorded complaint of back pain was in February 1993, some six months after the accident, when the plaintiff mentioned it to Dr Jamieson, his general practitioner. While he said in cross examination that he thought he had had this pain for some three months prior to this complaint, extensive physiotherapy notes relating to his attendances from August to December 1992 at the Calvary Hospital physiotherapy department show no record of back pain. I am not satisfied that the bilateral pars interarticularis defect at L4 level was caused by the accident. I am however satisfied that the shortening of his leg contributes to his hip pain.

The plaintiff was born in Canada and emigrated to Australia as a child. He attended High School in Canberra, but left at age 16 having completed year 10. He worked with his father in the family business, doing painting, carpentry and renovation work, mainly for the ACT Housing Trust. He ceased this form of employment in 1990, when his father had retired. In 1990 the plaintiff had a holiday in Canada. He says that by this time he had been working continuously for some six years, and had never had a holiday. He returned to Australia and at that time started work in a patisserie shop which was owned by the family company. He worked in this shop for about a year and a half, and says that he stopped because he was constantly on his feet and had a lot of pain. He decided that he would like to work in the hospitality industry, and he commenced a full time Bar course at the Reid TAFE in January 1992. The family patisserie business was sold.

In relation to general damages, I assess the plaintiff on the basis of his leg injury, and subsequent ongoing pain and disability. The accident itself was most painful, and he had to undergo major surgical procedures under general anaesthetic. He was then subject to a long period of convalescence. He still has restrictions in his movement. The plaintiff is a very large man, and was at the time of the accident. It is true that he was not an active sportsman, and to this extent his injuries have not deprived him of major activities. But an injury such as this in a young man is in any event a substantial matter. In Paulin v Stott (unreported, Supreme Court of the ACT, 3 February 1997) the Full Court considered $50,000 to be an appropriate quantum in a matter involving major leg injuries with a degree of ongoing disability. While those injuries were slightly greater than the present, they occurred in a much older man, and I consider $50,000 an appropriate sum. I would apportion $35,000 to past loss, generating interest of $3,645, a total general damages award of $53,645.

The plaintiff says that, but for the accident, he would have found employment as a barman, and would have continued in this industry. He was, of course, incapacitated through most of 1992 as his leg healed and he undertook physiotherapy courses. He continued his recovery through 1993. In early 1994 the pin was removed from his leg. In mid 1994 the plaintiff moved to Perth, where his sister lives, and where the possibility of a job in a contract cleaning business had been arranged by his sister. The plaintiff gave this a try, but was unable to cope with the level of activity required. I am satisfied that this type of activity would be beyond his physical capacity as a result of his leg injury. He continued to look for work in Perth, without success, He undertook a number of courses with the Commonwealth Employment Service, but was unable to find work in Western Australia.

In 1995 he moved to Wagga, and in December was successful in obtaining a six month contract position with the Coolamon Shire as a labourer, involved in driving a truck and working with a gang doing minor road repairs. He saw Dr McEwin while he was in this job, and he reported that

"Mr Galbes says this is quite light work which he can manage. He is also involved in making new roads or re making old roads. This is virtually all done by machinery but he and his workmates are involved in sweeping the gravel in after the gravel has been laid and spread by a machine. He says this is light work and there is no hurry about it so that it suits him well. Between periods of sweeping he can rest. He says his employer is sympathetic. Dr English, his present doctor at Coolamon, has given him Naproxewn of which he takes two a day. He says he could not work without this medication as it relieves his low back and right hip pain. Even so he says he has to be very careful in getting in and out of his truck and does this slowly. All in all he finds the job agreeable. He likes the people he works with. The job does not involve any heavy work and he can manage it despite his symptoms."

In his evidence the plaintiff said that he was having great difficulties with his knee at this time, so great that in driving he had to operate the brake and clutch with his left foot. This is not consistent with the history given by him to Dr McEwin, who was his consultant for medico legal assessment. I am not prepared to accept that the difficulties he confronted in this job were as serious as now claimed, and prefer the version recorded in Dr McEwin's notes.

The job with the Coolamon Shire was subsidised by a Commonwealth employment program. While the plaintiff had hoped that he might be kept on, this was not to be. He was laid off in the second half of 1996, and continued to look for work. In March 1997 he was successful in obtaining a position, originally on a three month trial, with the Coles Supermarket at Griffith, in the parcel pick up section. This was a casual job originally, for 25 hours a week. Although he says that he was in pain he persisted with this job, and successfully got through the probation period. He has been trained in a range of other retail tasks in the store. He is now working 20 hours a week. He enjoys retail work, and clearly his employer values him. He is concerned at his ability to work for 40 hours, but he has been able to manage 25 and 20 hours. He is considering going back to part time study to obtain his Higher School Certificate in order to advance his chances in the retail sector. He said that he would be prepared to move to another city if opportunities presented themselves.

It is considerably to the plaintiff's credit that he has made a real effort to obtain employment despite his difficulties. In particular, he has made an effort this year, knowing that his case was pending (and indeed it was originally set down for hearing in April) and was frank about his aspirations to develop a career in retailing, to the maximum potential consistent with his claimed disabilities. The plaintiff does not present as a person who minimises his abilities, or avoids employment to maximise his claim.

I am satisfied that this is an appropriate case for an arithmetical approach to the plaintiff's past wage loss. I am satisfied that the plaintiff has been a good worker, and was in employment for most of the time since he left school, at a relatively early age. I accept that he was not in employment at the time of the accident, but he was undertaking a full time course of vocational study with a view to entering the hospitality industry. The plaintiff has prepared a schedule of damages setting out his wage loss based on bar wages, at $274.95 net for 82.7 weeks, being from the date of the accident to 31 December 1993, and then from 1 January 1994 to the date of hearing at the rate of $365.30, which I am told is based on a Grade 1 Plant Operator's wage. In fact the plaintiff, when he worked for the Coolamon Shire, was not paid at this rate, but was paid at a labourer rate of $258 per week. Counsel for the defendant made the observation, which I think is fair, that taking into account wage movements I would not be in error if I took $300 a week net as an appropriate starting point for the plaintiff's wage loss, premised on bar employment. This would amount to a wage loss to trial of $81,900, being 273 weeks at $300, less of course his actual earnings at the Coolamon Shire of $6,708 and at Coles of $5,997.45. This amounts to a net wage loss of $69,194.55, which I award. Counsel for the defendant urged that a substantial discount should be applied to any arithmetical wage loss against the possibility that the plaintiff would have had difficulty in obtaining and retaining employment. Given his previous uncontradicted work history, and his efforts since the accident, I do not accept this submission. This wage loss generates interest of $19,775.50, leading to a total award for past economic loss of $88,970.05. The plaintiff's claim for past wage loss was particularised at $62,000 plus interest. I am satisfied, however, that it is appropriate to make an award for past wage loss as set out above based on the evidence which emerged at the hearing.

In relation to future wage loss, the plaintiff urges that I adopt an arithmetic approach, considering his loss over the whole of his expected working life based on the difference between his actual earnings and a range of notional alternative employment. These calculations take his current earnings as $235.85. Counsel for the defendant noted that the wage records produced by Coles show that in fact his average earnings over the six months that he has worked at Coles amount in fact to $276. This was not disputed.

Taking the plaintiff's possibility of ongoing work as a barman, the current rate since January 1997 for a full time barman is $334.63. This amounts to a net loss of $58.63. Applying the 3% tables over a working life of 38 years, and discounting at the conventional rate of 15% for the vicissitudes of life, this amounts to a loss of $59,445. If I was to take the loss based on full time employment under the shop assistants award, the net loss based on his present earnings of $276 against the award for full time work of $361.55 would be $85.55, which applied to the tables and adjusted for the normal 15% gives a loss of $86,592.

Counsel for the defendant argues that, even if it be correct to apply an arithmetical basis for the plaintiff's past wage loss, the imponderables in this case are such that I would fall in to error if I was to apply a strict arithmetical approach to future wage loss. The plaintiff is still a relatively young man. He has aspirations to improve his skills in retailing. He would like to work longer hours if he could. He has in the past worked longer hours - full time for the Coolamon Shire, albeit with some difficulties, and he has worked up to 25 hours per week this year for Coles. The defendant says that it is highly likely that he will be able to increase his hours with Coles. Against this, the defendant says that I must consider his back condition which, if I find as I have that it is not attributable to the motor vehicle accident, must stand as a potential barrier to his future employment apart from his accident related disability. The defendant urges that I adopt a buffer approach to the future income loss.

I think that this is a more sound approach, for the reasons set out above. The plaintiff, to his credit, is contemplating future study, and is keen to increase his hours and his career in retailing. Even so, his accident related disability must place him at a substantial disadvantage in the open labour market. He is precluded from a range of jobs in which he has previously worked. While he has no formal trade skills, he did work for a number of years in a family owned building maintenance business. He left school with limited formal qualifications, and his disabilities do prevent him from engaging in most labouring type activities. He is keen to develop a career in retailing, but acknowledges that he will have to return to some part time study to maximise his chances. His limited mobility and hip pain must place him at a substantial disadvantage in the open labour market. For a man of the plaintiff's years this calls for a quite substantial buffer. I award the sum of $30,000 by way of a buffer.

Out of pocket expenses were agreed in the sum of $37,256.60, which I award.

During the period after his release from hospital the plaintiff was considerably limited in his mobility. His parents had to assist in all of the activities of daily living, including assisting with his ablutions. There is a claim for Griffiths v Kerkemeyer damages based on 3.5 hours per week over 27 weeks at $15 per hour. I am satisfied that this is appropriate and consistent with the evidence, and I award the sum of $1,417 as claimed.

In respect of future out of pocket expenses, claims are made in respect of future lumbar fusion, cruciate ligament reconstruction, and knee replacement. I have found that the plaintiff back condition is not related to the accident, so the claim for lumbar fusion can be dispensed with. The medical evidence does indicate that he will continue to have difficulty with his right knee, and that some surgical intervention may be required. Dr Kitchin, for the defendant, said that the ligament instability in his right knee would increase his chances of osteoarthritis in the knee by 25%. Dr Stubbs felt that it was unlikely surgery would be required. Dr Bracken, who reported for the plaintiff, was of the view that ligament reconstruction could delay the onset of osteoarthritic changes that would otherwise be certain to develop due to the instability of the knee and the plaintiff's weight. I am satisfied that there is strong likelihood of surgery at some time in the future. Counsel agreed that it was not possible to be precise about this. Counsel for the defendant suggested a global sum of $5,000 against this contingency. I do not think that this makes adequate provision. The estimate of the cost of ligament reconstruction is currently $7,000. The estimates for the cost of knee replacement varied between $13,000 and $25,000. There is also the question of time off work. On balance, I award the sum of $10,000 against the possibility of future surgery and time off work.

The plaintiff also gave evidence, which was supported by the medical evidence, that as a result of the shortening of his leg, he is required to purchase special footwear and inserts. The evidence of the cost of this was uncontradicted, and would amount to a cost of $7,560 over his whole life, which I award. This amounts to a total award of $17,560 for future out of pocket expenses.

This amounts to a total award of damages of $228,848.65.

This must, of course, be subject to apportionment. The plaintiff argues that, even if I was to find, as I did, for the defendant's version of the facts surrounding the accident, I should find, on the authority of Alford v Magee [1952] HCA 3; (1952) 85 CLR 437 and Carruthers Bros Pty Ltd v Pennell [1964] HCA 27; 110 CLR 459, that the defendant had the last opportunity to avoid the accident and so he should be held solely liable. I do not think that this proposition can survive March v E & MH Stramare Pty Ltd & Anor [1991] HCA 12; (1990-91) 171 CLR 506, where the Court effectively laid to rest the Last Opportunity Rule (per Mason CJ at 513; see also Balkin & Davis, Law of Torts (2nd ed) pp333-334).

I have found that the plaintiff acted in a manner which amounted to contributory negligence. The defendant argues that the plaintiff and the defendant were equally responsible. I cannot accept this. The plaintiff was, in my finding, engaging in foolish conduct. But he was not driving a motor vehicle. He was stationary in the road. But the defendant had a clear view of him, knew he was engaged in light hearted tomfoolery, and proceeded to drive straight towards him without reducing speed. I apportion responsibility, bearing in mind the test set down in Podrebersek v Australian Iron & Steel [1985] HCA 34; (1985) 59 ALR 529, at 75% to the defendant and 25% to the plaintiff. The plaintiff is accordingly awarded the sum of $171,636.49.

I will hear the parties on the question of costs, as there were adjournments granted with costs reserved.