Efstratios Rovolis bhnf Vicky Rovolis v Taunton [2001] ACTSC 87 (31 August 2001)

Last Updated: 11 June 2002

Efstratios Steven Rovolis by his next friend Vicky Rovolis v Robert John Taunton [2001] ACTSC 87 (31 August 2001)

CATCHWORDS

DAMAGES - Motor vehicle accident - Internal injuries - Contributory negligence - Whether or not plaintiff was wearing a seat belt - Whether or not plaintiff was negligent by travelling with an intoxicated driver.

Banovic v Perkovic (1982) 30 SASR 34

Dawkins v Robinson (1986) 3 MVR 77

Griffiths v Kerkemeyer (1977) 193 CLR 161

Lee v Burn (1998) 27 MVR 186

Mendola v Warren (1993) 19 MVR 385

Rosencrancev Rosencrance (1995) 105 NTRI

No. SC 811 of 2000

Coram: Master T Connolly

Supreme Court of the ACT

Date: 31 August 2001

IN THE SUPREME COURT OF THE )

) No. SC 811 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: EFSTRATIOS STEVEN ROVOLIS BY HIS NEXT FRIEND VICKY ROVOLIS

Plaintiff

AND: ROBERT JOHN TAUNTON

Defendant

ORDER

Coram: Master T. Connolly

Date: 31 August 2001

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $111,012.64.

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 in Maribyrnong Avenue in Kaleen in the Australian Capital Territory in the early hours of the morning of Sunday 15 August 1999. The plaintiff was a front seat passenger in a motor vehicle being driven by the defendant that apparently lost control and left the road, hitting a tree. The plaintiff sustained serious, life threatening internal injuries. The defendant has admitted primary liability for the accident. A police report shows that the defendant had a blood alcohol reading of .16 when he was tested about one hour after the accident.

2. The real issues at the hearing was the extent, if any, to which the plaintiff was himself responsible for his injuries by reason of contributory negligence. This arose in two ways, in that the defendant alleged that the plaintiff was not wearing a seat belt at the time of the accident, and also the defendant alleged that the plaintiff had himself been engaging in an evenings drinking, and that when he accepted a lift with the defendant he knew, or ought to have known, that the defendant was so affected by alcohol that he would not be capable of controlling a motor vehicle.

3. The plaintiff was born in April 1963, and was 16 at the time of the accident, and 18 at trial. The proceedings were originally brought by his mother as his next friend, but as he has attained 18 he can now continue with the proceedings in his own name. The defendant was 19 at the time of the accident.

4. The plaintiff was a Year 10 student at Daramalan College at the time of the accident, and worked part time at his parent's restaurant in Dickson. He would normally work on a Saturday night, but on this evening he was attending a family function, a twenty first birthday party for his god sister. Apparently his parents had arranged a lift home for him from this party at O'Malley, but the plaintiff had plans of his own, which he had not revealed to his parents. He had planned to leave the party and meet with a friend from school, and go into Civic to night clubs for an evenings drinking.

5. He travelled by taxi from O'Malley to the home of Chris Miller in Kaleen. Mr Miller, also 16, was consuming some alcohol in his room when the plaintiff arrived, and they had some drinks before ordering a taxi to go into Civic. Mr Taunton was, on the evidence of the plaintiff and Mr Miller, also at the home, being the brother of Mr Millar's mother's husband. Mr Miller says that Mr Taunton had consumed a couple of beers that afternoon, but the evidence of both the plaintiff and Mr Miller is that Mr Taunton was not drinking with them, or in their presence or observation, at the home that evening.

6. Mr Taunton did not give evidence in these proceedings. The defendant tendered a report from a process server indicating that attempts to locate him to serve him with a subpoena to attend to give evidence had not been successful. I am satisfied that genuine efforts have been made to locate the defendant, and I draw no adverse Jones v Dunkel inference from his failure to give evidence.

7. The plaintiff says that by the time he and Mr Miller left Mr Miller's house he was "pretty intoxicated." They ordered a taxi, and as they were about to leave, Mr Taunton said that he would join them, and they travelled together to Civic. When they arrived in Civic they separated, Mr Miller and the plaintiff going to a sports bar, and Mr Taunton going to a Rugby Club. The plaintiff and his friend had a few drinks at a sports bar, and then caught a taxi to Manuka, where they attended another bar, and had further drinks. Apparently no one asked for any identification, and the two sixteen year olds had no difficulty in obtaining copious alcohol.

8. They then decided to return to Civic and meet up with Mr Taunton. The plaintiff says that by the time he and Mr Miller returned to Civic he was "very intoxicated". They found Mr Taunton at the South Pacific Rugby Club. The plaintiff says that he did not observe Mr Taunton drinking in this establishment, but recalls him standing with a group of his friends. Mr Miller said that he observed Mr Taunton drinking water, and also taking a sip from a friend's drink. They decided to return to Kaleen, and the three, together with another young man, Mr Miller's sister's boyfriend, caught a taxi home.

9. When they returned to Kaleen, at some time after 3am, Mr Taunton obtained the keys to Mr Miller's mother's car, and the four young men got into the car, with Mr Taunton driving. The plaintiff said in his evidence that he thought they were going to drop him off at his home. Mr Miller said that the plan was to return to Civic for more drinking before dropping Mr Rovolis home. He said:

"..me and Stratos, both didn't have a whole lot of money left, and we still wanted to keep going but paying for taxis was starting to become pretty expensive so we discussed it amongst me and Stratos that we could get Robert to drive, drive us back into Civic for a short while and then he'd be able to drop Stratos back home."

10. The plaintiff was seated in the front passenger seat of the car with Mr Miller behind him. They both gave evidence that they were "fooling around", and the plaintiff says that he does not know or remember whether he had his seat belt on, although he says that it is his practice to wear a seat belt. Both the plaintiff and Mr Miller recall that the windows were fogged up as they first sat in the car, but these were clearing. The car departed, but shortly after leaving Mr Miller's street, the car hit the tree.

11. The impact was clearly substantial, and it appears from the evidence of Mr Woodyard, a neighbour who was first on the scene, and from photographs of the vehicle tendered in the case, that the vehicle came into contact with the tree at about the front passenger door, and that the tree impacted into the vehicle. The plaintiff sustained very significant life threatening internal injuries, and was taken to the Canberra Hospital, where he was in intensive care for some time. He is most fortunate to have survived the collision, and to have made a significant recovery.

12. Primary liability was not in issue, the defendant clearly having failed to properly keep the vehicle under control. The defendant raised two issues of contributory negligence, which must be considered, being the claim that the plaintiff failed to wear a seatbelt, and the claim that the plaintiff was negligent in accepting a ride when he knew, or ought to have known, that the defendant was so affected by alcohol as to be incapable of properly controlling the vehicle.

13. Where an issue of contributory negligence is pleaded, the onus of proof lies on the defendant to establish, on the balance of probabilities, that the plaintiff acted in the manner alleged. Where it is alleged that the plaintiff failed to wear a seat belt, the defendant must establish this fact, and also establish that the failure to wear a seatbelt contributed to the injuries sustained by the plaintiff. It has been held in the Court of Appeal in New South Wales that, where failure to wear a seat belt is pleaded, the defendant will fail unless the defendant can establish both that the plaintiff failed to wear a seat belt, and that the seat belt was in good working order (Dawkins v Robinson (1986) 3 MVR 77. This decision was followed by Mildren J in the Supreme Court of the Northern Territory in Rosencrance v Rosencrance (1995) 105 NTRI. A differently constituted Court of Appeal in Lee v Burn (1998) 27 MVR 186 has held that, once the defendant satisfies the burden of proving on the balance of probabilities that the plaintiff did not wear a seat belt, then if the plaintiff wishes to argue that their failure to wear a seat belt was immaterial because the seat belt did not work, the onus shifts back to the plaintiff. With respect, this seems the preferable view, and I prefer the reasoning of Lee v Burn to Dawkins v Robinson. In this case there was no evidence at all as to whether the seat belt was in working order, and although Mr Crowe submitted that, on the authority of Dawkins v Robinson, this was sufficient to defeat the claim for contributory negligence, I prefer the Lee v Burn approach.

14. The plaintiff said only that he did not recall whether or not he wore a seat belt, but said that it was his practice to wear a seat belt. Mr Miller could not recall whether Mr Rovolis was wearing a seat belt. Mr Woodyard, who was first on the scene, said that he observed that the plaintiff was not wearing a seat belt. He acknowledged in cross examination that the defendant driver was out of the car and moving around at this time, and that the defendant could have released the plaintiff's seat belt. The defendant did not give evidence, but I do not draw an adverse inference here, as counsel for the defendant did tender material showing that attempts had been made to secure the defendant's attendance to give evidence. Ambulance officers also noted that the plaintiff did not have a seat belt on, but they arrived some time later, and all this evidence shows is that, by that time, the seat belt was not secured.

15. The evidence is thus somewhat ambivalent as to whether or not the plaintiff had a seat belt on at the time of the impact. In many cases there would be compelling medical evidence that would establish this fact, by showing that a person had been thrown around the cabin of the motor vehicle and had sustained injuries that would not be possible had they been secured by a seat belt. In this case, the vehicle collided with an apparent sideways motion into a tree, which impacted the cabin at the point where the plaintiff was sitting. There is no evidence before me that establishes that the pattern of injuries sustained by the plaintiff, being internal injuries on the left hand side (being the side of the point of impact) were injuries that said anything about whether he was wearing a seat belt.

16. Dr Schaeffer, a consultant neurosurgeon, gave evidence for the defendant, and said in his report of 13 March 2001:

"Mr Rovolis was involved in a serious motor vehicle accident on 15 August 1999 and suffered severe abdominal and chest injuries. I find great difficulty in believing that he was wearing a seat belt at the time, as had this been the case I consider he would not have suffered injuries of that nature. In my opinion, it may safely be assumed he was not wearing a seat belt."

17. Dr Champion, a specialist in pain management and musculo skeletal medicine, has provided reports for the plaintiff, and he said in his report of 14 March 2000:

"In regard to the seat belt issue, Stratos stated that he is uncertain whether he had a seat belt or not. Assuming that he did not, one can only guess what difference there may have been to his injuries had he applied a seat belt. I put it to him that maybe there would have been less abdominal trauma, but as shown in photographs of the car, the door came in a long way and so there may have been no difference, ie no protection from the seat belt. As there is some evidence I understand that neck injuries can be more prevalent and serious when seat belts are worn, it may well have been that he would have had worse neck pain. I doubt that the insurers could make a case that had he been wearing a seat belt (assuming he was not) his injuries would have been far less."

18. Dr Schaeffer and Dr Champion were able to be cross examined by telephone. Dr Schaeffer was not, in my view, able to amplify his evidence in any helpful manner. Dr Champion did make the point that the nature of the impact and the nature of the injuries were consistent with significant sideways forces at impact. Given the nature of the injuries to this plaintiff, being internal injuries on the side of the lower abdomen at the point at which the passenger door was stove into the vehicle due to the impact with the tree, I am not satisfied that the injuries tell me anything either way about whether a seat belt was worn. On the somewhat unusual circumstances of this accident, the absence of observable seat belt bruises (a matter, I should add, on which no doctor who examined the plaintiff at the time of the accident has said anything) would not tell me anything useful, as the impact was sideways and the door impacted into the cabin.

19. It seems to me, on all of the evidence, that the defendant has not satisfied the burden of proof in establishing, on the balance of probabilities, that the plaintiff did not wear a seat belt. I should add that, even if I am wrong in this, I would not be satisfied, due to the nature of the injuries sustained by the plaintiff, that the failure to wear a seatbelt, if made out, contributed in this case to the nature of his injuries.

20. Dr Champion gave evidence that "thoracic and abdominal injuries, as well as spinal injuries, are on average more severe in those who are wearing seatbelts, compared to those who are not, even though more lives are saved by seatbelts." He referred to abstracts of academic papers to support this thesis, which were not tendered during the hearing. After the hearing, counsel for both plaintiff and defendant sought leave, which was granted, to put into evidence the relevant abstracts, together with correspondence with Dr Champion. I am satisfied from this that all that is established is that seat belt bruising is a recognised and recognisable condition, and that abdominal bruising may give rise to internal injuries. I am not satisfied that, as a general proposition, there is any sound science to support the view that there is no significant safety benefit in the use of seatbelts, and I take Dr Champion's letter to acknowledge this.

21. Having said that, I am still not satisfied that the defendant has shown that the plaintiff has sustained injuries in this accident that he would not have sustained if he was wearing a seat belt. There was evidence of the plaintiff striking his head, but it is not clear from the evidence whether this was on the front windscreen (consistent with not wearing a seatbelt) or on the side glass (consistent with an impact of sideways force). The internal injuries he sustained are, it seems to me, consistent with the sideways impact of the car into the tree, and the impact into the car, and the plaintiff's seated position, of the car door, and perhaps part of the tree. Given my finding that this was the nature of the collision, there is no evidence to satisfy me that the plaintiff's injuries, in this particular case, would have been different whether or not he was wearing a seat belt, which is designed to be effective in reducing the injury level for forward impact collisions.

22. I am not satisfied that the defendant has discharged the onus of proof in relation to the asserted contributory negligence in respect of the seat belt.

23. The defendant further alleges that the plaintiff was guilty of contributory negligence in accepting a ride with the defendant when he knew or ought to have known that the defendant was "incapacitated to drive a motor vehicle in a safe and competent manner". The law in relation to drunkenness as contributory negligence is well set out in the decision of the Full Court in Mendola v Warren (1993) 19 MVR 385. In that case Miles CJ stated that:

"The real issue is, bearing in mind that the onus is on the respondent, whether the appellant allowed himself to be deprived of the capacity to observe the state of the respondent before he should have known of the risk that the respondent's ability to drive might be affected by drink" (at 388).

24. His Honour observed that, where the facts are that the driver and passenger engage in a joint drinking bout, and continue drinking to the point where the passenger loses the ability to form a judgment, contributory negligence can be made out, which was the fact situation in that case. His Honour cited the following passage from the decision of King CJ in Banovic v Perkovic (1982) 30 SASR 34 at 37:

"There may, I suppose, be circumstances other than a joint drinking bout, such as the known intentions of the driver, which would lead a reasonable person to anticipate the likelihood of the driver becoming intoxicated and which would therefore require him for his own protection to remain sober enough to assess the driver's condition. I do not think, however, that, in the absence of such circumstances, a passenger is required to refrain from drinking in order to be able to detect signs of intoxication in his driver. The safety of the vehicle and its occupants is the responsibility of the driver. It is his obligation to remain sober so that he can discharge that responsibility. In the absence of some clear indication that the driver will fail to discharge his obligation, the passenger can hardly be expected to take precautions against such failure. Having no responsibility for the driving, the passenger is free to drink as much or as little as he pleases."

25. In the present case, there is no evidence that the plaintiff and the defendant were engaged in a joint drinking bout, indeed, the evidence is to the contrary. The plaintiff and Mr Miller gave evidence that the defendant was not drinking in their company at any stage of the evening. They proceeded to drink to excess, and apparently, as two underage 16 year olds, had no difficulty in obtaining alcohol at licensed venues. This indicates foolishness and a breach of the licensing laws, but is not, it seems to me, relevant for the purposes of contributory negligence. It seems to me, applying the test adopted by Miles CJ from King CJ, I must look to any circumstances that would have indicated to the plaintiff that the defendant would fail to discharge his obligations to drive safely and to not drive while intoxicated.

26. The plaintiff was a young man, and the defendant was an adult. The evidence is that the plaintiff did not observe the defendant drinking. While it may be asked rhetorically what else would the defendant be doing for some hours at a Civic nightclub after midnight, counsel for the plaintiff answered, appropriately in my view, that many persons do comply with the practice of appointing a "designated driver" who will accompany a group on a night out, and being the person required to drive, abstain from drinking. The defendant must prove that the plaintiff had notice that the defendant was drinking, and there is no evidence to support this proposition. There is no evidence to counter the plaintiff's proposition that he assumed the defendant, having offered to drive into Civic, would be in a sober state.

27. The plaintiff and the defendant were together in the taxi ride home from Civic to Kaleen. By this time he was drunk. I am not satisfied that he was negligent in failing to make observations during this drive that the defendant was unfit to drive. The evidence is that the defendant was well over the legal limit, but I note that the police report that recorded the .16 reading also noted the experienced policeman's observation that the defendant was affected by alcohol to a "moderate" level, and not to the levels of well under the influence or bordering on drunkenness, that are alternative observations on the form. The plaintiff was a young man, and not an experienced driver, nor a person with experience in judging levels of intoxication.

28. I am not satisfied on all of the evidence that the plaintiff's conduct on this evening in embarking on an under aged drinking bout with his friend Mr Miller and later accepting a ride with the defendant when he had no knowledge that the defendant had been drinking, however foolish, meets the legal requirements for a finding of contributory negligence.

29. I turn now to the question of assessment of damages.

30. The plaintiff was taken from the accident scene to the Canberra Hospital where he was operated on for his significant internal injuries. The operation reports were not in evidence, but were referred to by Dr Champion in his report of March 2000. He had a ruptured spleen and intensive internal bleeding, and difficulties with his lung function due to a left chest wall contusion and pulmonary contusion. There was an initial fear of brain injury, but this has proved not to be the case, and the plaintiff is indeed fortunate in this respect.

31. He sustained some laceration to the scalp, which has healed, but sustained cuts to his face at either side of the mouth during the process of resuscitation, and there are fine scars remaining at this point. There is a significant scar on the centre abdomen, and a scar under his left armpit where a drainage tube was inserted. These scars remain, and the plaintiff said that the abdominal scar does cause him some embarrassment, in that he prefers to keep a shirt on at the beach or at a public pool.

32. He remained in hospital in intensive care for about a week, and was released from hospital the following Monday. He was released to the care of his parents, and was bed ridden for about four weeks. During this time his mother provided nursing and personal care, and the defendant accepts that this should sound in damages as a claim pursuant to the principles in Griffiths v Kerkemeyer (1977) 193 CLR 161. He gradually became ambulant, and returned to school in September. There is a note from his general practitioner which records "back at school" on 28 September, and also states "playing touch footy". The defendant argued that this suggested a near full recovery, but the plaintiff said that at most he was engaging in light activities. It is not consistent with the nature of his injuries for him to be fully recovered by this time, and I accept the plaintiff's explanation for this note.

33. He returned to school to year 11 studies in 2000. He said that he continued to experience abdominal pain, and also pain in the neck and left shoulder. He said that these pains come and go, and he does not take anything for them. He said that the neck pain occurs about once a month.

34. He completed his studies to completion of year 12 standard in mid 2001, and has entered a hospitality industry traineeship programme. It is his intention to undertake hospitality industry studies at the Canberra Institute of Technology in the future, moving on to a career in hotel management. At present the traineeship involves bar work and waiting in the family restaurant business. Mr Rovolis complains of abdominal pain in the event of heavy lifting, and says he is guarded about any heavy lifting activities.

35. He is nervous when a passenger in a car. He learned at the time of his hospital admission that he is positive to Hepatitis C, which was probably contracted in infancy during a blood transfusion. This has caused him considerable concern, but it is not a condition caused by the accident.

36. In respect of general damages, I assess the plaintiff as a young man who sustained very significant and life threatening internal injuries which have, fortunately, substantially resolved. He is left with some noticeable scarring, and I take this into account. He continues to complain of occasional abdominal pain, which seems to be a residual effect from internal scarring. I note that there is no specific medical reports on his internal injuries, which I take to have substantially resolved.

37. He continues to complain of occasional neck and back pain, which is soft tissue in nature, and of a relatively low level, on the basis of his evidence. There is some evidence of an underlying degenerative condition in the back, but I assess the plaintiff on the basis of the present pain being related to the motor vehicle accident. There is a recommendation for pain management programme and exercise as the most appropriate strategy to deal with this problem.

38. There was evidence form psychologists for the plaintiff and the defendant, but taking all of this material, together with the plaintiff's evidence, I am not satisfied that there is any persisting psychological sequelae to the accident, although I accept a degree of anxiety in the period following the accident. The Hepatitis C condition is, I am satisfied, a matter of concern, but is not attributable to the accident.

39. Taking all of this into account, I assess the plaintiff in the sum of $65,000, with $50,000 attributable to past loss, generating interest of $2,050, for a total award of $67,050.

40. Out of pocket expenses for the past were agreed in the sum of $14,462.64, which I award.

41. The plaintiff acknowledged that he is not undertaking any present treatment regime, but his counsel argued that there was evidence to support some form of pain management course to deal with the soft tissue injury, and suggested a modest buffer of $2,000, which I consider appropriate for future treatment costs.

42. There was agreement that some award was appropriate for the care provided to the plaintiff by his mother during his period of recovery. Mr Crowe suggested an award based on 5 hours a day for 8 weeks would be appropriate, taking into account the diminishing need for care over time, but also the period of taking the plaintiff to doctors and the like. An award of $4,500 inclusive of interest seems appropriate.

43. The plaintiff originally particularised a future economic loss claim only by way of a buffer, but I permitted an amendment to the statement of particulars to include a claim for past loss. His evidence was that he used to work at the family business, and received about $10 an hour, for about $100 a week. There were no records produced to justify this amount. I am satisfied, however, that the plaintiff was, due to his accident related injuries, prevented from working in the restaurant, or in other appropriate part time employment, for about a year following the accident, and then has gradually recovered his ability to work. An award of $5,000 for past loss, inclusive of interest, seems an appropriate buffer, noting that, in the absence of records of actual loss, it is inappropriate to award more.

44. For the future, the plaintiff seems to be planning a career in catering and hospitality management, which he seems suited to. There have been assertions in the medical material that he has done less well at school due to the accident, but no school reports were tendered to support any claim for deteriorating performance, and his evidence is that he has completed year 12, is undertaking the traineeship, and plans to undertake CIT studies with a view to eventual university work.

45. I accept that the plaintiff will have a limitation for heavy lifting, due to the residual soft tissue neck and back pain, and his abdominal pain. I accept that the abdominal scarring does cause occasional pains, and also causes the plaintiff to be apprehensive about heavy lifting that would put a strain on his abdomen. This should sound in damages in respect of a long term limitation to heavy work. His counsel submitted that an award of $15,000 to $20,000 would be appropriate as a buffer in respect of future economic loss, and I am satisfied that an award of this order is appropriate, and I award $18,000, for a total economic loss award of $23,000.

46. This amounts to a total award of $111,012.64 which I consider to be appropriate in all of the circumstances of the case, and award, with costs..

I certify that the preceding forty six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.

Associate:

Date: 31 August 2001

Counsel for the Plaintiff: Mr Crowe

Solicitor for the Plaintiff: Pappas J Attorney

Counsel for the Defendant: Mr Stretton

Solicitor for the Defendant: Phillips Fox

Date of hearing: 7 August 2001

Date of judgment: 31 August 2001