David Andrew Creech v The Nominal Defendant [1998] ACTSC 220 (29 May 1998)

  
  
  
  

  
   

  

   IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

   MASTER T. CONNOLLY

  

  

   Negligence
- Whether plaintiff driver of vehicle - evidence pointing to
plaintiff as driver.

  

   Negligence - Whether bright light of oncoming
vehicle caused accident -
contributory negligence - plaintiff duty to slow or stop.

  

   Damages - Assessment - Personal Injury
- Motor vehicle accident - Fractures
to Legs and Arm - No Issue of Principle

  

   Nominal Defendant v Gardikiotis [1995] HCA 56;  (1996) 186 CLR 49

  

  

   CANBERRA, 25 February and 19 May 1997 and 20-23 April 1998 (hearing), 29
May 1998 (decision)

  
#DATE 29:5:1998

  

   Counsel for the Plaintiff: Mr. R.E.Williams QC: appearing with

   Mr. R Mildren

   Instructing Solicitors:
Vandenberg Ried

   Counsel for the Defendant: Mr. L.M.Morris QC appearing with

   Mr. M.A.Mc Donogh

   Instructing Solicitors:
Abbot Tout Harper & Blain

  

  

   THE COURT ORDERS THAT:

  

   1. Judgment be entered for the defendant.

  

  

   MASTER
T. CONNOLLY

  

   1. This is a claim for damages for personal injuries arising from a motor
vehicle accident which occurred on
the evening of 18 April 1988 on Sutton Road
in the Australian Capital Territory. The plaintiff says that he was the driver
of the
vehicle, and that he was blinded by the lights of an oncoming car, and
that as a consequence his vehicle failed to negotiate a bend,
and left the
road coming to rest in a culvert. As a consequence of the impact the plaintiff
sustained serious fractures to both legs
and his left arm. The plaintiff was
unable to identify the other vehicle whose negligence he says caused his loss,
and he accordingly
brings this action against the Nominal Defendant.

  

   2. The defendant denied liability. It attacked the plaintiff's credit
squarely,
and argued that the evidence establishes that the plaintiff was in
fact the passenger of the vehicle at the time of the accident,
and so no
action lies against the Nominal Defendant. Further and in the alternative it
argues that, even if I was to find that the
plaintiff was the driver of the
vehicle, the conduct of an oncoming unidentified vehicle, if such a vehicle
did exist, did not cause
the accident and that even if the vehicle did not
cause the accident, there should be a finding of contributory negligence.

  

   3. The plaintiff says that on the evening of the accident he had attended a
family dinner, where no alcohol was consumed, and
then intended to visit his
girlfriend, who lived in Queanbeyan. He did not, however, drive by the direct
route from the family home,
where he was then residing, to Queanbeyan, but
rather drove to the centre of Canberra. When he first gave evidence he said
that he
did this because he hoped to meet a person who could supply him with
cannabis in Civic, but that he did not in fact meet up with
this person. When
he was later cross examined he admitted that he did meet with this person, and
further admitted that this person
was a supplier of heroin as well as
cannabis, but maintained that he did not obtain any drugs on that evening.

  

   4. The plaintiff
had a long-standing and severe drug habit at the time of
the accident. He was born at Grenfell in New South Wales on 28 November
1961
and came to Canberra at the age of seven, and completed his education to the
end of Year 10. He began and successfully completed
an apprenticeship as a
cabinet maker, and worked successfully in that trade for a time, both as an
employee and in his own business.
In the mid 1980's, however, he commenced to
use heroin. Extensive records from the ACT Alcohol and Drug service document
his problems
with substance abuse since. His employment record became
spasmodic as his heroin use increased. He was unemployed for extensive
periods,
but maintained a habit costing many hundreds of dollars a day. He had
one conviction for theft, and declined to answer questions
relating to his
manner of financing his heroin use during this period.

  

   5. In late 1987 he commenced a methadone program,
and by early 1988 he
concluded this program. He acknowledged, however, that he did use heroin after
this program ceased. The plaintiff
tendered a report from Dr. Dauncey, a
toxicologist, which stated that in her opinion the very high levels of pain
relief which was
used on the plaintiff on his admission to hospital pointed to
the conclusion that the plaintiff had been ingesting narcotics in the
period
leading up to the accident. Her conclusion, contained in a report of 14
January 1997, was that:

  

  

   "Mr. Creech had
been using heroin regularly and possibly heavily in the
weeks prior to the accident."

   6. The plaintiff says he then proceeded
from Civic towards Queanbeyan by
way of the airport road. He says that he had driven by this route previously,
but that it was not
a regular route. An aerial photograph of the accident
scene was tendered as part of the defendant's case. This photograph shows that
Sutton Road proceeds in a generally northerly direction away from Fairbairn
Road, which is the airport road leading to Queanbeyan.
The intersection
between Fairbairn Road and Sutton Road was described in a traffic engineers
report tendered by the plaintiff as
forming a generally right angle T
intersection. The plaintiff agreed in his cross examination that this
intersection was well lit.

  

   7. The plaintiff says that he took a wrong turn at this intersection
because there were roadworks. This involves a finding
that the plaintiff,
instead of proceeding straight ahead towards the town of Queanbeyan,
mistakenly took a sharp and direct turn
off the road to Queanbeyan and
proceeded in the opposite direction towards the Federal Highway, and that he
continued on this course
until the accident, some 400 meters north of the
intersection. The plaintiff's version of events at this point is difficult to
accept.

  

   8. The accident occurred near the entrance to Fairbairn Park, a motor sport
facility off the Sutton Road. At this point Sutton
Road makes a curve towards
the right. The traffic engineer who gave evidence for the defendant, described
the site as follows:


 

  

   "The northbound traffic approached the site through a curve to the right.
The curve had a radius of about 360m and went
through an angle of about 45
degrees. About 60m from the entrance to Fairbairn Park the sealed pavement
widened to provide a left
turn filter lane for north bound traffic entering
the Park."

   9. Photographs of the site were included in this report, and from
these
photographs the plaintiff identified a point where he said his car passed the
oncoming vehicle. Mr. Vaughan, the traffic engineer,
used this mark on the
photograph and a scale plan of the accident scene to identify this point as
about 85 meters from the culvert
in which the plaintiff's vehicle came to
rest.

  

   10. The plaintiff's case is pleaded on the basis that he was the driver of
the vehicle, and as a result of the negligent conduct of the unidentified
vehicle, he lost control of his vehicle and crashed into
the culvert. The
defendant argues that, on all of the evidence, I should find that the
plaintiff was not in fact the driver of the
vehicle at the time.

  

   11. It is common ground that the plaintiff was found sitting in the
passenger position of the vehicle.
Both of his legs were extensively
fractured, as was his left arm. He says that he extricated himself from the
driver's position,
and moved to a more comfortable position, and to a position
where he could exit from the vehicle. Counsel for the defendant points
to the
fact that the vehicle was in such a position that the passenger side door was
hard up against the culvert and could not be
opened, but that the drivers
door, which was the door accessible to his one good limb, could be easily
opened, and was in fact the
method of access used by ambulance officers. On
this basis it seems unlikely that a driver would move, with apparent
difficulty with
two badly broken legs and a fractured left arm, from the
drivers to the passenger's seat.

  

   12. The two ambulance officers
who attended the scene gave evidence. I
found the evidence of these two disinterested observers of considerable
assistance.

  

   13. Ambulance Officer John Spiller was the first on the scene. He received
a call at 24 minutes past eleven to attend an accident
about 1 kilometer down
the Sutton Road. He was the sole officer in the vehicle that night. He located
the vehicle, and observed the
plaintiff sitting in the passenger seat. He said
the plaintiff was:

  

  

   "In the normal sitting position that you would normally
find somebody
sitting in a motor vehicle."

   14. He observed that the plaintiff had injuries to his legs and arm, and a
laceration
over his left eye. He observed damage to the windscreen, with what
appeared to be hair embedded in cracks in the windscreen, in a
position:

  

  

   "Roughly the middle of the passenger side windscreen."

   15. Mr. Spiller said that, in his experience, head
impacts with a
windscreen were much more common for front seat passengers than drivers,
because a driver has the steering wheel in
front of them, and the common
injury is for the driver to sustain chest injuries when flung forward and
coming into contact with
the steering wheel. He took no complaint of chest
injury from the plaintiff and observed no chest injury.

  

   16. The plaintiff's
left arm sustained a comminuted fracture of the distal
radius and ulna. This was described by Mr. Spiller as a Colles's fracture,
which he said is commonly sustained in a bracing motion, as where a person
puts their arm out to protect themselves from a fall or
impact. He said in
cross examination that he had never seen such an injury from gripping a
steering wheel, as a steering wheel will
usually give way.

  

   17. Ambulance Officer Ross Muller arrived on the scene after Officer
Spiller. He also observed the plaintiff
in the passenger seat. He said:

  

  

   "His legs, to me- he assumed the normal position one would sit in a
vehicle, his legs
down in the well of the vehicle in front of him in a normal
sitting position. He was asked whether he observed anything about the
windscreen, and he replied: " Initially no, but then having discussed with
Officer Spiller the occupant's injuries, that being his
legs, his arm and the
laceration of his eye, we had a look, or I had a look and I noticed that the
windscreen in fact was damaged
on the passenger side."

   18. Officer Muller expressed the view that it would be "very extremely
painful" for a person with the
plaintiff's injuries to move in the vehicle,
and that it would not be possible to weight bear. Officer Spiller expressed
similar
views, but both conceded in cross examination that persons with severe
injuries can sometimes do remarkable things.

  

   19. Officer
Muller expressed similar views to Officer Spiller in relation
to the mechanism of the plaintiff's fracture to the arm, expressing
the view
that this is consistent with a protective mechanism for a front seat
passenger.

  

   20. The plaintiff was asked about
marks on the windscreen by a police
officer at Canberra Hospital on 19 May 1988. This conversation was recorded by
way of a handwritten
note, and included in material tendered by the plaintiff.
He maintained that he was the driver of the vehicle, and said that he was
blinded by an oncoming vehicle. The notes record:

  

  

   "Bump in windscreen in front of driver? The seat gave way and snapped
the
seat belt. Bump in wind screen in front of passenger? I was trying to smash it
to get out."

   21. The plaintiff said in his
evidence that the windscreen mark was about
the middle of the windscreen, and he said that he recalled this from an
inspection of
the vehicle that he attended with his father after he was
released from hospital. His father said that he inspected the vehicle without
the plaintiff being present shortly after the accident, but that by the time
the plaintiff was released from hospital, the vehicle
was gone.

  

   22. The plaintiff said in his cross-examination that he had moved inside
the vehicle by way of lying across the
seat. The cross examination continued:

  

  

   "But you couldn't move inside the car past the transmission tunnel, could
you?
Sorry You couldn't move- there's a transmission tunnel in this manual
Falcon, isn't there? Yes A gear box. You couldn't move from
one side of that
to the other, could you? No, I mainly stayed with the legs and laid down
because it was a bench seat."

   23. This
evidence is quite inconsistent with the observations of the two
ambulance officers who recalled the plaintiff sitting in a normal
position,
with his legs in the passenger side well of the vehicle. To move two broken
legs over the transmission tunnel would be
an extraordinary achievement, and
is in any event not the plaintiff's version of what occurred.

  

   24. There is a substantial
time lapse between when the plaintiff left the
family dinner at around 7pm and the notification to the ambulance after 11pm.
The
plaintiff says that he heard a bicycle going along Sutton Road after being
in the car some time, and that he spoke with this unidentified
person who then
presumably summoned help. The defendant suggested that the delay maybe
explained by the driver making his departure
from the scene before summoning
help.

  

   25. Taking all of the evidence, I am not satisfied on the balance of
probabilities
that the plaintiff was the driver of the vehicle at the time of
the accident, and I find, contrary to this, that he was the passenger
of the
vehicle. The plaintiff's presence in the passenger seat, the observed mark to
the windscreen with hair embedded in it, the
nature of his injuries and the
inherent unliklihood of a person so injured being able to move at all, let
alone to move to a position
further away from an exit point, all contribute to
this finding. The plaintiff's claim that he tried to smash the windscreen with
his one good arm and hand is implausible, and hard to fit with the one good
limb being next to the easily opened drivers door, if
he was in fact the
driver.

  

   26. The plaintiff's sworn evidence that he was lying in the passenger seat
with his legs in the
driver's position is quite inconsistent with the evidence
of the two ambulance officers which I prefer.

  

   27. Taking into account
all of this evidence no other conclusion seems
open, as a matter of probability, than that the plaintiff was the passenger in
the
motor vehicle at the time. I am mindful that I have reached this
conclusion on the bases of a number of separate aspects of what
may be
described as circumstantial evidence, but I respectfully adopt the comments of
Neaves Burchett and Whitlam J J in Italiano
v Barbaro (1993) 114ALR 21 at 39:

  

  

   "We have not overlooked the many assertions in the authorities that if a
fact is to
be proved by circumstantial evidence, the conclusion must be the
only one reasonably open. But this proposition is confined to the
criminal
law; in a civil proceeding, where facts are to be established as a matter of
probability, competing explanations need only
be excluded on the
probabilities."

   28. Having reached this finding of fact, I would enter judgment for the
defendant. It is however,
appropriate to proceed further on the alternative
assumption, that is, that I am in error at this point and that the plaintiff
was
in fact the driver at the time of the accident.

  

   29. The plaintiff agreed that the oncoming vehicle safely passed his car,
and that he was not in that sense forced from the road. At the point at which
the cars passed they were both traveling in their respective
lanes, and his
estimate of speed varied from 50 to 80 kilometers an hour.

  

   30. The plaintiff agreed that he had observed the
lights of the
unidentified vehicle as it approached him. He said that he would have observed
the lights from a couple of hundred
meters. He said:

  

  

   "When I just started to come around the corner and he was coming in the
corner from the other direction."

   31. The plaintiff acknowledged that he knew the road was curved because he
had observed the approaching lights following that
curved approach. It is the
defendant's case that there is no causal link between the accident and the
conduct of the unidentified
vehicle, because the plaintiff knew the outline of
the road, and in any event had ample time to slow or stop his vehicle.

  

 
 32. The plaintiff's evidence is that, following the dazzle of the oncoming
lights, he proceeded with some awareness of the white
line on the left-hand
side of the road. This meant that he followed the slip lane towards the
approach to Fairbairn Park rather than
the alignment of the main road, which
he knew to be curved. The plaintiff said:

  

  

   "Because I was blinded by the light,
and when he went past, I've just kept
going straight ahead instead of following the road around."

   33. The plaintiff said that
he applied his brakes, but "they weren't
applied till it had gone off the side of the road area.". This was
inconsistent with earlier
statements taken after the accident where the
plaintiff was recorded as saying that he started to brake after the cars
passed.


 

   34. Mr. Vaughan, the traffic engineer, gave evidence of the relevant
braking distances, assuming that the cars passed at the
point identified by
the plaintiff, and assuming the various versions of the speed of the vehicle,
which ranged from 80 kilometers
an hour to 50 kilometers an hour. He said
that, at 80 kilometers an hour a vehicle would with moderate braking well
short of skidding
come to a halt in about 55 meters. At 50 kilometers the
distance would be 22 meters. Allowing for a normal reaction time of about
one-second, these distances would be expanded to about 77 meters at 80
kilometers and 35 meters at 50 kilometers. In any event, the
plaintiff would
have had adequate space to bring his vehicle to a halt before hitting the
culvert, which was some 85 meters from
the point at which the vehicles passed.

  

   35. Mr. Vaughan was asked what would happen if, at the point identified as
where
the vehicles passed, a northbound vehicle failed to respond to the
curve. He said that it would proceed substantially straight ahead,
following
the line of the slip lane, until it ultimately came to the culvert. This is
essentially what occurred here, and I find
as a fact that the plaintiff's
vehicle failed to continue to take the curve, proceeding instead straight
ahead until it left the
bitumen shortly before the culvert. It was at this
point, on the plaintiff's evidence, that the brakes were applied.

  

   36.
I am not satisfied that the presence of bright, indeed dazzling,
headlights at the point indicated by the plaintiff can be said to
have caused
this conduct on the part of the plaintiff's vehicle. He knew that he was in
the middle of a curved stretch of road as
the vehicle approached. His
explanation is that, after a temporary dazzle, he tried to steer by looking to
the left-hand line, and
so mistook the slip lane line for the line marking the
ongoing alignment of Sutton Road. But this does not explain, and the plaintiff
was unable to satisfactorily explain, other than as an error of judgment, why
this would mean that he proceeded to steer straight
ahead instead of
continuing to follow a curve, which he knew to be the general alignment of the
road ahead.

  

   37. It follows
from this that, even assuming that the plaintiff was the
driver of the vehicle, I am not satisfied that the presence of oncoming
bright
lights was the cause of the plaintiff ceasing to follow the alignment of
Sutton Road and instead proceeding straight ahead
and eventually into the
culvert. On this basis I would enter judgment for the defendant.

  

   38. If I am wrong about this, I
would in any event find that the
plaintiff's conduct in failing to continue to follow the alignment of the
curve, or failing to stop
or slow his vehicle until he regained full vision
and awareness, amounted to contributory negligence, and it would then be
appropriate
to assess damages before apportioning liability.

  

   39. There is no question that the plaintiff suffered serious injuries as
a
result of the accident, which are set out in the medical material tendered in
the plaintiff's case. Dr. Stubbs, his treating orthopedic
surgeon, recorded
the initial treatment, which occurred on the day following his admission. He
recorded:

  

  

   "In the left
forearm there is a comminuted fracture of the distal radius
and ulna involving the joint. A closed reduction was performed and a
plaster
cast was applied. On the left leg there is a comminuted fracture of the distal
tibia and fibula which was treated by a closed
reduction and plaster cast
fixation. In the right leg there is a fracture of the proximal tibia involving
the articular surface of
the lateral femoral and the lateral tibia condyle
which were treated by an open reduction and internal fixation using
inerfragmentary
screws and an AO buttress plate. In the course of the fixation
some various position of the proximal tibia was accepted in the interests
of
reconstituting the joint surface."

   40. The plaintiff required a long convalescence and ongoing physiotherapy
before mobility
was regained. A further operation was required in May 1989.
Dr. Stubbs recorded this procedure as:

  

  

   "An open reduction
and internal fixation had been performed for a
comminuted fracture involving the articular surface of the tibia. Good
resitution
of the tibia articular surface had only been obtained by setting
the leg in a mild varus position. The purpose of the surgery on
24 April was
both to remove the plate and screws used to fix the previous fracture and also
to perform a high valgus tibial osteotomy
to correct the alignment of the
limb."

   41. The plaintiff continues to complain of pain and soreness in his knees
and ankles,
particularly his right knee and left ankle. In September 1989 Dr.
Keiller noted these restrictions, but said that he was able to
continue in his
trade with a sympathetic boss. In 1993 Dr. Keiller expressed the view that he
was no longer fit for work as a cabinet
maker, but would be able to take up
less arduous occupations. Dr. Scott, an occupational physician, expressed the
view in 1996 that
the plaintiff's capacity to work as a cabinet maker was very
much diminished, and noted that he was undertaking a course in behavioral
science at the Canberra Institute of Technology with a view to working in that
field.

  

   42. The principles to be applied in
determining compensation in personal
injuries cases have been well summarised by McHugh J in Nominal Defendant v
Gardikiotis [1995] HCA 56;  (1996) 186 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 possible, 'in the same position he
would
have been in if he had not sustained the wrong for which he is now
getting his compensation."

   43. In this matter I assess general
damages on the basis of a plaintiff who
has suffered major trauma involving fractures to both legs and an arm,
requiring extensive
surgery, with the requirement for a follow up procedure. I
note that the surgery, while generally successful, has left the plaintiff
with
ongoing pain and restrictions on his movement and activities, all of which
must sound in general, damages. Taking all of this
into account, I assess
general damages in the sum of $95000, of which I would assess $75000 for past
loss, generating interest of
$15,000, a total award of $110,000.

  

   44. The plaintiff's claim for economic loss was particularised on the basis
of an ongoing
loss of the wages he would have expected as a cabinet maker off
set against such earnings as he had received in the years since the
accident,
for a total loss to January 1997 of $173,587. A future loss was particularised
as an ongoing loss of $538 per week, which
amounted to a claim for $570,432.

  

   45. The defendant argued that, even it was to be held liable for the
plaintiff's injuries,
his ongoing heroin and alcohol abuse would have a major
impact on his economic capacity, and that any assessment of damages for
economic
loss would have to take this into account. Counsel for the plaintiff
acknowledged that the plaintiff's ongoing drug and alcohol problems
would
amount to "a substantial discounting factor" but argued that:

  

  

   "He has lost something and he should be compensated
for that as a general
buffer of a moderate range for past and future economic loss"

   46. The plaintiff's ongoing use of heroin
and alcohol was set out in some
detail in the report of Dr. Dauncy, and I need not set it out again in full,
other than to note that
it continued until a final methadone program in 1996,
and had involved admission to Woden Hospital for a heroin overdose in 1993.
The notes also indicate periods of very heavy alcohol use over the years. I
accept that the plaintiff will experience pain in his
knee and ankle, and that
this is a barrier to prolonged employment in heavy trades. I note however that
he has been able to move
in and out of employment in his trade. I accept in
effect what his counsel said would be appropriate in all of the circumstances,
and I would award a discretionary buffer of $75,000, as a general buffer for
past and future economic loss, inclusive of interest.

  

   47. Out of pocket expenses in this matter were agreed at $6,155.46 which I
would award.

  

   48. This would amount for
a global award of $191,155.46 which I consider to
be appropriate in all of the circumstances. I have found that the plaintiff's
conduct
in failing to stop or slow his vehicle when confronted with the
oncoming bright lights amounts to contributory negligence which I
would assess
at 50% This would mean that the amount of damages I would assess as
appropriate in this case, if I be wrong in my primary
finding, would be $
95,578.00.

  

   49. As I have found that the plaintiff was the passenger in the vehicle,
there will be judgment
for the defendant. I will hear the parties on costs.