Jennings v Johnson [1998] ACTSC 90 (4 September 1998)

Last Updated: 13 October 1999

Jennings v Johnson [1998] SCACT 90 (4 September 1998)

CATCHWORDS

NEGLIGENCE - Motor vehicle accident - Defendant's vehicle sideways across path of plaintiff's vehicle towing a trailer - Poor visibility - Heavy rain storm - Plaintiff's vehicle collided with defendant's vehicle - Contributory negligence - Failure to keep a proper lookout - Failure to take sufficient evasive action to avoid collision - Travelling at a speed which was excessive in the circumstances.

DAMAGES - Assessment - Personal injury - Motor vehicle accident - Severe facial injury - Extensive fractures to skull, face and jaw - Reconstructive surgery - Right knee injury with a ruptured patella tendon - Significant fracture dislocation injury to his wrist - Post traumatic stress disorder - No issue of principle.

No. SC 899 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 4 September 1998

IN THE SUPREME COURT OF THE )

) No. SC 899 of 1996

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: ROBERT JAMES JENNINGS

Plaintiff

AND: NORMAN RICHARD JOHNSON

Defendant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 4 September 1998

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $230,184.47.

2. The defendant pay the plaintiff's costs.

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on the Princess Highway south of Bega on 28 November 1995 when the plaintiff's vehicle, which was heading north along the highway, collided with the defendant's vehicle, which at the point of impact was stationary in the plaintiff's lane and facing west - that is to say, was at right angles to the normal flow of traffic. The defendant admits primary liability, but alleges contributory negligence on the part of the plaintiff. Considerable time in the hearing was spent in attempting to determine how the defendant's vehicle came to be in the position it was in.

2. The plaintiff sustained major injuries in the accident by way of extensive fractures to the scull and jaw, and injuries to his wrist, knee and right hand. He had worked as a floor layer before the accident, and it is common ground that his injuries prevent him from carrying on in that occupation. He has made determined efforts to rehabilitate himself and find alternative employment, and the defendant's case is that he has, despite the serious nature of the injuries and the loss of his former trade, mitigated his loss to a large extent in relation to future economic loss.

3. It is appropriate to consider the circumstances of the accident, the question of contributory negligence, and then proceed to assess damages and make an attribution if contributory negligence be found.

The Accident

4. On the day of the accident the plaintiff had been working on a job at the Pambula District Hospital, and was returning to his home in Bega. He was driving a Holden utility, and towing a trailer, which was only lightly loaded. He says that it was rainy and slightly windy as he left Merimbula. He was wearing a seatbelt and had not consumed any alcohol that day.

5. As he approached Bega he said that the weather deteriorated. He said that

"I was just coming up past the Bega cemetery and I sort of drove into a - like just heavier rain and wind, and I slowed down. I slowed down considerably because I was - it was raining."

He said that he slowed down to about 65 kilometres an hour at this point, and that there was very heavy rain with visibility of about 25 or 30 metres. He said that the heavy rain continued

"...only for seconds, like, that sort of seemed to go for ages."

He says that as he passed Finucane Lane he saw a vehicle's headlights in front of him pointing in a westerly direction, with the vehicle across the road. He says that when he first saw that it was about 30 metres away from him. He said he took his foot off the accelerator, put it on the brake, and veered to the left, and that the collision then occurred.

6. The defendant has no direct recollection of the accident. An unusual aspect of this case is that the plaintiff pleaded alternative particulars of negligence to explain what the defendant's vehicle was doing in the position where the impact occurred. The primary case for the plaintiff, which is the version of events which the plaintiff believes explains what occurred, is that the defendant was travelling south, that is towards the plaintiff, and lost control in the heavy rain, veering towards the plaintiff's side of the road, and ending in a position diagonally across the plaintiff's lane. The alternative version of events, which is the understanding, but not the recollection of the defendant, is that he was travelling north at the time, that is in the same direction as the defendant. On this version he again must have lost control of the vehicle in the rain, and ended up in the position he was in at impact. The defendant admits primary liability on this version of events.

7. The plaintiff at no stage saw the defendant's vehicle travelling in a proper course in either direction. In his evidence in chief he referred to first seeing the vehicle in the incorrect position, that is, facing across the road. He agreed that he had told police some time after the accident that when he first saw the defendant's vehicle it was sliding towards him. This would be consistent with the vehicle having been originally heading south before losing control.

8. The defendant's only recollection is leaving his home south of Bega to go into the township to meet with his wife at 4.30 that afternoon. This is consistent with the defendant having been travelling in a northerly direction prior to loss of control. The police officer who originally reported on the matter formed the view that the accident occurred as a result of the defendant, who was travelling north, losing control and ending up stationary in the position at which the collision occurred.

9. Senior Constable Brown in his oral evidence changed his original conclusion as to the direction of travel. He did this on the basis that wreckage from the defendant's vehicle was found both north and south of the crash scene. Constable Brown said that, if the defendant's vehicle had been stationary or travelling north, and was hit by the plaintiff who was also travelling north, wreckage would only be thrown in a northerly direction. Because wreckage from the defendant's vehicle was found south of the scene, he said that he now believed that the defendant's vehicle was moving south at the point of impact. Senior Constable Brown is an experienced country police officer, but has no special training in accident engineering, and his views can only be seen as his reasons for adopting a revised opinion as a general duties police officer at the time of the accident.

10. The defendant commissioned a report from an experienced traffic engineer, Mr Moir. He noted that while it was common ground that the defendant's vehicle was facing west at the time of impact, it was facing east after the collision, indicating that the force of the impact had swung it around. He explained that this would generate considerable centrifugal forces, and accordingly wreckage from the defendant's vehicle would be expected to be found scattered all around the accident scene. I found this explanation compelling, and it seems to me to refute the reasoning that, because some wreckage was found south of the scene, the defendant's vehicle must have been travelling south at the point of impact.

11. While the defendant cannot recall the impact, he can recall that he had left his home south of the scene, and was due to meet his wife in Bega some minutes after the accident occurred. From this information Constable Brown drew the inference that both cars had been proceeding north before the collision. On all of the evidence, I find this explanation the most satisfactory.

12. I should say that I think that little in fact turns on this. The defendant clearly lost control of his vehicle, and had come to a position where he was stationary and parked at a right angle to oncoming traffic on the Princess Highway. Primary negligence is clearly established.

13. The plaintiff did not directly observe the defendant before his vehicle came to be in this position. His evidence is that when he first observed the defendant's vehicle it was across the roadway, although he believed that it was moving towards him. I have found to the contrary, but the sudden appearance of a vehicle in this unexpected position could clearly have given the impression that it was moving. I am in no way critical of the plaintiff's overall credibility in reaching my conclusions as to the circumstances of the accident.

Contributory Negligence

14. The defendant's case is that the plaintiff was himself negligent in failing to brake or avoid the collision. The defendant argues that on the plaintiff's own evidence, he was travelling too fast in the conditions at the time of the impact by admitting to a speed of 65 kilometres with only a 25 to 30 metre range of vision.

15. The plaintiff said that he had been travelling at about 80 kilometres an hour, due to the weather, as he approached the accident site. He said that as the rain got heavier he reduced his speed to 65 kilometres an hour, and said that he was then concerned that faster vehicles travelling behind him might collide with his trailer. In his earlier police statements he had said that he was travelling at 80 kilometres an hour, and made no mention of a further reduction of speed. In a statement to the insurer he said in May 1996 that he reduced his speed to 65 kilometres an hour by deceleration, and that at that point his visibility was limited to 25 metres.

16. I am satisfied that the plaintiff is truthful in this regard, and I find that, as he approached the immediate impact scene he reduced his speed to 65 kilometres an hour, and his vision was then limited by the heavy rain to 25 metres.

17. In his original statement to the police officer the plaintiff said that when the defendant's vehicle first appeared it was 15 to 16 metres in front of him. He said in his evidence that this was not correct, and that it was in fact something less than 30 metres in front of him. I accept that the original statement was taken immediately after the plaintiff had major surgery to his skull, and I am satisfied that the later version is correct, which is to say that I find that the plaintiff first saw the defendant when he was travelling at 65 kilometres an hour with a forward vision of about 25 metres.

18. The plaintiff says that he then put his foot on the brake pedal and tried to veer to avoid impact, but that the collision occurred. Such a collision was indeed inevitable on the plaintiff's evidence. I accept the evidence given by Mr Moir that for a single vehicle travelling at 65 kilometres an hour without a trailer and in dry conditions to stop in an emergency situation will involve a travel distance of 54 metres, comprising a braking distance of 30 metres and a reaction distance of 24 metres. While the defendant's counsel put it to the plaintiff that his original version of events given to police was in fact correct, that is that he was travelling at 80 kilometres an hour and first observed the vehicle at about 15-16 metres away, I must find that, if I accept as I do the plaintiff's version of events, that 65 kilometres an hour was too fast in driving conditions that allowed only 25 metres of forward vision. The plaintiff was, on his own evidence, driving at a speed which did not allow him to bring his vehicle to a halt within his range of forward vision even in dry conditions without a trailer. He was in fact travelling with a trailer, and in a rainstorm. His speed was such that he could not stop before hitting an object which came into his limited forward vision. This amounts to negligence, and I thus find contributory negligence established.

19. The apportionment legislation provides that, where contributory negligence is established, the proper course is for a court to proceed to assess damages and then to attribute responsibility and accordingly reduce the global award according to the respective level of responsibility which is found to be attributable to the plaintiff's conduct. It is thus appropriate to consider the appropriate award of damages.

The Injuries

20. Counsel for the defendant conceded, quite properly, that the plaintiff sustained severe injuries in the accident. Photographs of the accident scene indicate that the collision involved very considerable forces, and both vehicles were extensively damaged. Indeed, given the nature of the impact, it is fortunate that both the plaintiff and the defendant survived.

21. The plaintiff was taken from the accident scene to Bega Hospital, and was transferred later that afternoon to Woden Valley Hospital. His treating orthopaedic surgeon was Dr Roberts, and he reported in March 1997 that the plaintiff was admitted under his care on 28 November 1995 and

"...underwent surgery the following day. He had been involved in a motor vehicle accident and was transferred from Bega. He had an open right knee injury with a ruptured patella tendon. There was also a significant injury to his wrist with a fracture dislocation of the carpoetacarpal joint and a severe facial injury."

22. He was operated on 29 November to deal with the open knee injury, and on 2 December to deal with the wrist. Wires which had been installed to stabilise his wrist were removed in a further operation on 16 January 1996. He had also had some initial reconstructive work done on his face. He was referred to Dr Vickers, a consultant oral and maxillo facial surgeon in January 1996. He removed bars which had been placed to stabilise his cheek bones and upper jaw and eye socket in an operation on 10 February 1996.

23. Dr Vickers performed major reconstructive surgery on 22April 1996 at John James Hospital. This was described by Dr Vickers, who was assisted by Dr Walker, in a report of 1 July 1997 as follows :

"...an incision was made through the right scalp, and incisions over the upper jaw and the right cheek bone. The tissues were elevated with priosteal elevators and a defect in the right eye socket approximating the orbital floor and the right anterior maxilla was noted. We also noted a malunion of the right zygomatic arch which had resulted in depression over the right cheek bone prominence. Osteotomies were performed through the right zygoma, maxilla, and a bone graft was taken from thee right parietal region of your client's skull. Dr Walker assisted and we used internal fixation plates as well as titanium mesh to reconstruct the areas that we were unable to bone graft. Your client was subsequently discharged from hospital approximately three weeks later."

He needed, however, to return to have a drain inserted to release a temporal haematoma.

24. A further procedure was undertaken at John James Hospital by the same team on 31 July 1996 where Dr Walker reconstructed the right tear duct, and Dr Vickers worked on the sinus area.

25. The plaintiff thus underwent a series of eight operations, some involving multiple procedures, in the seven months after the accident. He continues to complain of pain in his knee and wrist. Doctors reporting for the insurer acknowledge that these would preclude the plaintiff from continuing in his pre accident occupation as a carpet and floor covering installer, where much of the work is done in a kneeling position.

26. Dr Vickers in a report of July 1998 provided a summary of his head and facial condition. He said

"Mr Robert Jennings has sustained one of the severest facial injuries that I have seen in my 20 years of surgery. The trauma has affected the right eye socket, upper jaw and left and right cheek bones. He has damage to the right tear duct and left ear. He has damage to the teeth on the upper and lower jaws. He has damaged sensory nerves which have altered the feeling over the face, skull and jaws. His bones have been so structurally altered that he has problems in chewing and gets muscle spasms. He has balance disorders and poor job prospects with regard to this.

Mr Jennings has undergone repeated surgical endeavours which have not been without considerable discomfort and pain. However he is still left with considerable facial deformity and only partial recovery of the factors that make up facial aesthetics and function. It is difficult to quantify the amount of loss or damage that Mr Jennings has sustained to his face. Nevertheless if someone were to ask me the percentage damage to the bones, nerves and structures that comprise Mr Jennings face one would suggest that he has had at least 90% damage to the structures therein. It is testament to Mr Jennings' character that he has endured the suffering so far."

27. The plaintiff also suffered from an understandable psychological sequelae from this accident, with Mr Harris, a psychologist for the Country Australia Psychology Service reporting that he met the criteria for Post Traumatic Stress Disorder from the accident go around August 1996 and from the second anniversary of the accident in November 1997. Mr Harris said that while these settled with treatment, he may remain vulnerable.

Damages

28. 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'."

29. In this case counsel for the defendant properly conceded that this was a case where substantial general damages would be appropriate. The injuries sustained by the plaintiff were very severe, and they will have an ongoing impact on him.

30. The plaintiff was 35 at the time of the accident. He had lived in the Bega district for most of his life, leaving Bega High School in 1977 towards the end of year 11. He found work as a floor installer with a Bega company, and worked in that field until he joined the Army in 1984. While in the Army he undertook courses in field engineering and advanced army driving.

31. On his discharge in 1987 he worked as a carpet layer for a Bega firm, and for a period as a powderman for the Department of Main Roads, having obtained his explosives licence that year. In 1989 he established his own business laying carpets and vinyl floor coverings.

32. The plaintiff was actively involved in community activities in the Bega district. He was very active in the bush fire brigade, rising to be captain of the remote area fire team. This involved training in helicopter insertion into remote areas in the forest and wilderness areas around the Bega district. He also enjoyed a range of watersports, and put this to community use as a rescue diver with the local coastal patrol. It is significant that although both of these active roles are now denied him due both to his mobility difficulties and his balance problem, he maintains his involvement with both bodies as a stores supervisor for the bush fire brigade and as a dive supervisor for the rescue association.

33. In relation to general damages, I award the plaintiff the sum of $145,000, with $100,000 attributable to past loss, generating interest of $5,539.73, making a global award of $150,539.73 which I consider to be appropriate in all of the circumstances.

34. The plaintiff has been unable to return to his trade as a carpet layer. He has, however, shown a remarkable determination to mitigate his losses, and has turned his hand to other activities since the accident. This has led to a situation where the defendant argues that he has, despite the admitted severity of his accident, in fact only moderate future income loss.

35. The plaintiff held a private income insurance policy, and has been in receipt of income support payments. His claim for past economic loss is based on the difference between his average net profit in the 4 years before the accident, of some $22,500, and his actual income from personal exertion in the years since the accident. I am satisfied from the accounts presented in evidence that the plaintiff in the 1995/6 year earned $8,164, and that it is thus appropriate that he be awarded $14,350 for that year. In the year 1996/7 I am satisfied from the accounts that he in fact earned $7,662 but incurred expenses of $13,844. This income was from contracting to dig graves. The plaintiff found that an opportunity existed in Bega to undertake contract grave digging services for a local undertaker. I am satisfied that even though he sought to mitigate his loss he incurred a loss of $6,182 for that year, and so it is appropriate to award an amount to recoup this loss and to make up for the lost profit. The plaintiff asks for $27,500 for this period, and this is appropriate. This amounts to a total of $41,850 for the two years to July 1997. No past loss is claimed beyond this date, and I award this sum. As the plaintiff was in receipt of private income insurance which amounted to $35,643 for this period, he was actually out of pocket by the sum of $6,207, which is the relevant amount for calculation of interest on past economic loss, which generates the sum of $493, leading to a total award for past economic loss of $42,343.

36. The reason that the plaintiff makes no claim for past economic loss beyond the end of the 1996/7 financial year is that his grave digging business picked up significantly in that year, to the point where his gross contracting receipts amounted to some $52,000, which exceeded his gross carpet laying receipts for all of the previous four accident years apart from 1994/5. The plaintiff has undertaken the lease of a mini excavator, which has allowed him to increase the amount of work he does as a grave digger, and also to undertake other work as a contractor. With a lot of construction activity in the district due to a new cheese factory, he has had a very good year, and properly concedes that he has in effect mitigated his loss.

37. The defendant argues that I should conclude from this that the plaintiff has generally mitigated his loss, and that he will indeed continue to prosper in his other activities, so that no award should be made for future economic loss, or at most a modest buffer.

38. The plaintiff concedes that if the 1997/8 accounts were an accurate prediction of the future this would be a sound argument, but argued and presented evidence to support the proposition that the results for that year were unlikely to continue.

39. The plaintiff continues to suffer from a loss of balance. This has been conceded by those experts who reported for the defendant in relation to his vocational capacity. The excavator that Mr Jennings has leased for his grave digging and minor contracting work is a small tracked vehicle which digs by way of an extending arm, and then pivots around the base of the vehicle to place the excavated material by the side of the grave or trench. These repetitive swings cause Mr Jennings discomfort, and he says that he is limited in the amount of work that he can perform on the machine. He says that, if he works a full day, he will need a couple of days rest before again putting in a full day. This indicates that the work may be unsuitable in the long term.

40. There is also a limit on the amount of work available. A breakdown of the accounts for the 1997/8 year show that his gross contracting receipts came from gravedigging ($38,415), work on the cheese factory ($5,992.36) and general contracting ($8,108.64).

41. The plaintiff says that the gravedigging work has little scope for growth. Mr Wyman, the Bega funeral director for whom Mr Jennings works, gave evidence to support this proposition. He explained that the Bega Shire was unusual in that it allowed funeral directors to arrange for their own graves to be dug. In surrounding shires he said that the work was performed by municipal employees who formed part of the general council workforce. There is thus little scope for Mr Jennings to find additional work in the surrounding areas.

42. Mr Wyman also said that he had secured Council approval for a crematorium to be constructed in the district. There is no such facilility at present, and Mr Wyman expects that when it is constructed it will lead to a reduction in the demand for burials, and accordingly in the scope for Mr Jennings to provide contracting services.

43. Mr Jennings said that the large amount of work that he had obtained from the cheese factory was unusual, and that this major construction project was now coming to an end. He said that he did not expect to find as much work in construction work in future years, and in any event had balance difficulties in operating his machine for any extended periods.

44. I am satisfied that the receipts for the 1997/8 financial year are unlikely to be replicated. However, there is much in the submissions of counsel for the defendant that the plaintiff has demonstrated that he is an enthusiastic and entrepreneurial man who will show initiative in finding an effective way to utilise his economic capacity. He is clearly well known and liked in the district, and while he acknowledged that friends had provided him with general contracting work to help him out, it also shows that he can expect to continue to find support for his enterprises.

45. I must, however, be mindful not to in effect penalise the plaintiff for his commendable attitude to overcoming his misfortune and getting on with his life. He has suffered considerable injuries, and he is left with significant impairment. His trade of floor cover laying which he had followed since leaving school and developed into a growing small business is now closed to him forever. He had worked as a driver in the Army, but his balance problems limit this type of activity. While he has made a considerable go of operating a small excavator, the problems in constant turning in operating this machine cause difficulties with his balance, and this activity is limited in its growth, and indeed may not be sustainable in the long term.

46. Ms Duncombe, an occupational physiotherapist who reported for the defendant said that the plaintiff would be

"...able to consider a number of occupations in the non repetitive moderate capacity excluding demands for balance, climbing, kneeling and crouching. He is also able to consider sedentary and semi sedentary work provided that his work space is able to accommodate his need to regularly stretch his right leg and to change his position as required."

47. The defendant also provided a report from an occupational psychologist, Ms Taylor, who reported that

"...his reading and potential for routine clerical checking tasks fall in the average range while his arithmetic skills fall in the well below average range."

Clerical work may thus be a problem.

48. I must conclude that the plaintiff does suffer a continued disadvantage in the open labour market, and must undergo a significant change in his career as a result of the accident. He has done this by his move to contract excavating and grave digging, and this activity has proven to be successful in the short term, but I accept that there will be limitations in this activity in the long term. This is not a case where an arithmetic approach to future wage loss is appropriate. Counsel for the plaintiff argued that I should calculate on the basis of a total wage loss representing the worst case, and then apply a proportion of that loss. I am not satisfied that this is appropriate. In relation to future economic loss I find that the plaintiff suffers a significant barrier to the effective utilisation of his economic capacity which should be compensated by way of a significant buffer award of $80,000.

49. Past out of pocket expenses were agreed to amount to $62,393.98, which I award. I am satisfied that the plaintiff is likely to need future surgery for scar revision and attention to his wrist, and also the possibility of future facial surgery. I award a discretionary buffer of $10,000 by way of future out of pocket expenses.

50. This amounts to a global award of $345,276.71 which I consider to be appropriate in all of the circumstances.

Attribution of responsibility

51. Where contributory negligence is pleaded and established the role of the court is to proceed to assess damages, and then to apportion responsibility between the plaintiff and the defendant. Counsel for the defendant argued that the appropriate course in a case such as this was to attribute responsibility equally between the parties. Counsel for the plaintiff argued that no finding of contributory negligence should be made, or that if it was, the plaintiff's responsibility for the accident should be seen to be very minor.

52. The defendant, for whatever reason, lost control of his vehicle, and ended up in a position where he was stationary at 90 degrees to the oncoming traffic. Mr Moir, the engineer, said that it was apparent from the damage to the vehicles that the defendant's vehicle was stationary at the time of the impact, and was not moving in a westerly direction. While this was led to refute the plaintiff's recollection that the defendant may have been moving at the time of impact, it goes to establish that the defendant was doing nothing to get his vehicle out of the way of the inevitable oncoming traffic. He was stationary on the Princess Highway directly across the path of the highway.

53. I have found that the plaintiff was negligent in travelling at a speed where, on his own evidence, he could see no more than 25 to 30 metres, and so was unable to stop. It is appropriate to observe that the accident occurred in a stretch of highway where the speed limit was 100 kilometres an hour, and the plaintiff had reduced speed to 80 kiliometres an hour, and then to 65 kilometres an hour due to the conditions. A stationary vehicle at right angles to the highway and directly in the traffic lane is not a hazard to be reasonably expected, but the plaintiff was travelling at a speed where he could not safely stop or avoid any hazard.

54. Taking all of this into account, I find that the plaintiff's level of responsibility was less than that of the defendant. I would attribute responsibility in the proportion of two-thirds to the defendant and one-third to the plaintiff. This must involve a reduction of the plaintiff's award by a third, leading to an award of $230,184.47 which I award, with costs.

I certify that this and the fifteen (15) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 4 September 1998

Counsel for the Plaintiff: Mr A J Philpot

Instructing Solicitors: Baker Deane & Nutt

Counsel for the Defendant: Mr F G Parker

Instructing Solicitors: Phillips Fox

Dates of hearing: 11, 12 and 13 August 1998

Date of judgment: 4 September 1998