Donaldson v Canberra Tyre Service Pty Ltd & Anor [2004] ACTSC 26 (5 May 2004)

Last Updated: 19 May 2004

MARK ROBERT DONALDSON v CANBERRA TYRE SERVICE PTY LTD ACN 008500838 and CALTEX AUSTRALIA PETROLEUM PTY LTD ACN 000032128 [2004] ACTSC 26 (5 May 2004)

NEGLIGENCE - personal injuries - successive industrial accidents.

DAMAGES - personal injuries sustained in successive industrial accidents - issues of contributory negligence and apportionment between joint tortfeasors in respect of first accident - issues as to extent to which injuries and disabilities caused by first and second accidents - issues as to whether some portion of injuries caused by second accident should be treated as attributable to condition caused by first accident - general principles.

Civil Law (Wrongs) Act 2002 (ACT), ss 21, 102

Barisic v Devenport [1978] 2 NSWLR 111

Canberra Formworks Pty Ltd v Civil and Civic Ltd (1982) 41 ACTR 1

Gillespie Brothers & Co Ltd v Bowles Transport Ltd [1973] QB 400

Davis v Commissioner for Main Roads [1968] HCA 10; (1968) 117 CLR 529

Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82; (1986) 161 CLR 500

State Government Insurance Commission v Oakley (1990) Aust Torts R 81-003

Jefferies v Roads and Traffic Authority of New South Wales (unreported) NSW CA 28 November 1997

Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSW CA 115

Government Insurance Office of NSW v Aboushadi (1999) Aust Torts R 81-531

Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638

No SC 609 of 2000

Judge: Crispin J

Supreme Court of the ACT

Date: 5 May 2004

IN THE SUPREME COURT OF THE )

) No. SC 609 of 2000

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: MARK ROBERT DONALDSON

Plaintiff

AND: CANBERRA TYRE SERVICE PTY LTD

First Defendant

AND: CALTEX AUSTRALIA PETROLEUM PTY LTD

Second Defendant

ORDER

Judge: Crispin J

Date: 5 May 2004

Place: Canberra

THE COURT ORDERS THAT:

1. there be judgment for the plaintiff against the first defendant in the sum of $502,855.38;

2. there be judgment for the plaintiff against the second defendant in the sum of $441,531.56;

3. any monies paid to the plaintiff by the first or second defendant in discharge of the judgments referred to in orders 1 and 2 shall also constitute a pro tanto discharge of the liability imposed upon the other defendant by virtue of the judgment in favour of the plaintiff;

4. the first defendant indemnify the second defendant in respect of any monies paid to the plaintiff in discharge of its liability to the plaintiff in excess of the sum of $220,765.78;

5. the second defendant indemnify the first defendant in respect of any monies paid to the plaintiff in discharge of the liability arising under the judgment in excess of $282,089.60.

1. This is a claim for damages for personal injuries sustained by the plaintiff in successive accidents whilst working at a service station operated by the first defendant pursuant to a franchise agreement with the second defendant.

2. The first accident occurred on 28 January 1998 when the plaintiff slipped and fell from the support of a T-hoist in bay 1 of the garage area of the service station, injuring his back.

3. The plaintiff gave evidence that after the accident he noticed oil and water on the sole of one of his boots. He explained that, whilst there was a drain at the other end of the workshop, oil and water pooled against a mound made of concrete placed over the site from which an earlier hoist had been removed. The pooling occurred in the major walkway and the plaintiff was constantly required to walk through the area. It was submitted on his behalf that oil and/or water must have been transferred to the boot from the area of pooling and it was this that caused his foot to slip and precipitated the accident.

4. The case against the first defendant was based upon allegations that it had breached its duty of care to the plaintiff by failing to provide him with a safe place of work and a safe system of work. The plaintiff impressed me as a straight forward and honest man who gave his evidence candidly and I have no hesitation in accepting his account of the accident and of the state of the premises in which it occurred. Mr Crowe SC, who appeared for the first defendant, indicated that he did not wish to be heard in relation to the alleged breaches of duty and I have no doubt that they have been established.

5. Mr Pilkinton, who appeared for the second defendant, did submit that liability could not be established against either defendant because there was no adequate evidence to establish that any oil and/or water on the plaintiff's boot had emanated from the area of pooling. He pointed out that the plaintiff's statement of 14 August 1998 had indicated that it had been a wet day and suggested that this, coupled with the fact that oil and grease were on the workshop floor generally, could have accounted for the presence of oil and/or water on his boots. In cross-examination the plaintiff conceded that the workshop was to some degree open to the elements and that water could enter it. He also conceded the possibility that water could be brought into the workshop on the soles of other people's shoes. However, when asked whether it was common for oil and/or water to be on the floor in other areas of the workshop, he replied "just mainly bay 1". He had earlier explained that oil and water was constantly pooling in that area and that there was no way in which he could avoid having to walk through or stand in that area. In these circumstances, whilst it is obviously conceivable that he may have trodden in oil and/or water from other sources, I am satisfied on the balance of probabilities that the oil and/or water which precipitated his fall from the hoist had been transferred to his boot when he walked through or stood in this area.

6. The case against the second defendant was based upon evidence that it had remained the occupier and owner of the premises throughout the period covered by the franchise agreement; that it had authorised the work which had created the mound of concrete in bay 1 and hence the hazard caused by the adjacent pooling of oil and water and further, that it had failed to rectify the work, despite the obvious danger created, even after warnings by the plaintiff's father and regular safety inspections by employees of the second defendant. Whilst Mr Pilkinton challenged some of the evidence relied upon by the plaintiff to support these propositions, the fact that the second defendant was the owner and occupier, that it arranged for the work to be carried out which had created the hazard, and that it failed to take any measures to alleviate the risk were not disputed.

7. Mr Robert Donaldson, the plaintiff's father, had sworn an affidavit in which he deposed to having spoken to Mr Merv Adams, who was then the second defendant's area representative, concerning the problem on about three occasions. On one such occasion Mr Adams had told him that if there was some surplus money from the budget it might be possible to have the problem rectified but on a subsequent occasion he had explained that because the second defendant was "disinvesting" in service stations there was no money for repairs. Mr Adams apparently retired in 1990 and was replaced by Mr Gary Smith. The plaintiff's father said he had also raised the matter with Mr Smith on about three occasions but was told that it would be a major problem to rectify and that the second defendant did not have the necessary funds.

8. Mr Adams could not be located but Mr Smith gave evidence that he did not recall any complaints about the matter. The plaintiff's father had since died and was unavailable for cross-examination. Nonetheless, I see no reason to doubt his evidence that he had complained to both Mr Adams and Mr Smith. I accept that Mr Smith was a credible witness and that he was genuinely unable to remember any such complaints. However, his duties had apparently been demanding and he had been required to inspect a large number of service stations. It would be entirely understandable if he had forgotten complaints that had been made about one problem at one such service station more than a decade before he was asked to give evidence.

9. In any event, Mr Smith conceded that there should have been a drain in bay 1 to obviate any pooling of the nature described by the plaintiff and that its absence should have been glaringly obvious on inspection.

10. Accordingly, whilst Mr Pilkinton ably advanced every argument that could reasonably be mounted in opposition to such a finding, I am satisfied that the second defendant also breached its duty to the plaintiff.

11. Both Mr Crowe and Mr Pilkinton submitted that the plaintiff had clearly been guilty of contributory negligence by climbing on the hoist when he could have simply lowered it and worked on the vehicle at ground level. The plaintiff himself conceded that it had been "an obviously dangerous thing to do" and "a silly thing to do". It was also suggested that, whilst he had apparently complained about the pooling of oil and/or water to his father, there were steps that he could himself have undertaken to alleviate the risk such as placing mats in the relevant area or sprinkling it with a granular absorbent material which he referred to as "kitty litter".

12. Mr Bartley SC, who appeared on his behalf with Mr Tuscano, argued that the plaintiff was obviously a man of limited intelligence who had, in effect, been putty in the hands of those cross-examining him and that the apparent concessions he had made should be viewed with caution. He maintained that whilst the plaintiff had nominally been a director of the first defendant and his father had not held such an office, it was his father who was the driving force of the business and his father who would have been left to make all of the relevant decisions. The plaintiff had described his father as a "hard man" and, by contrast, he appeared to be a person of a relatively passive disposition who would have been likely to have followed his father's lead without demur. He said that he had been a director only "on paper" and that he had not been responsible for ensuring that the workshop was operated safely though he would have responded to any obvious danger. Furthermore, his father had deposed to the difficulties experienced in attempting to alleviate the problem by hosing the oil and water away and attempting to remove the residue with a "squeegee". In these circumstances, Mr Bartley submitted that any reduction should be limited to 10 - 15 per cent of the damages that would otherwise be awarded.

13. Whilst I accept that there is considerable force in Mr Bartley's submissions, the plaintiff was well aware of the danger of having slippery boots as a result of walking through the pool of oil/water and must have realised that there was an obvious measure of risk in climbing onto the metal hoist. It may be true as Mr Bartley suggested, that it would have been a messy operation to reinsert the sump plug whilst oil was still draining from the engine but there was no evidence to suggest that the plaintiff could not have waited until the drainage had been substantially completed before doing so. Furthermore, I do not accept that his concessions that it had been obviously dangerous to climb on to the hoist as he did were merely the product of the persuasive influence of the cross-examination and/or a compliant attitude to the cross-examiner. In my opinion, he was clearly guilty of contributory negligence.

14. In these circumstances s 102 of the Civil Law (Wrongs) Act 2002 (ACT) requires that the plaintiff's damages be reduced to the extent the court deciding the claim considers just and equitable having regard to his or her share in the responsibility for the damage. Provisions of this kind normally require a court to balance the extent to which the plaintiff contributed to the causation of the accident by his or her own negligent conduct against the extent to which the negligence of the defendant contributed to the causation of the accident.

15. In a case involving joint tortfeasors there may be some debate as to the manner in which any reduction in damages on that ground should be determined. As the New South Wales Court of Appeal observed in Barisic v Devenport [1978] 2 NSWLR 111, there has been an almost universal practice both in the United Kingdom and Australia of regarding the plaintiff as one unit and the defendants, if they are concurrent tortfeasors, as another. The plaintiff's negligence is then compared with the aggregate degree of negligence or blameworthiness of the defendants. The extent to which the plaintiff's damages should be reduced is determined as a result of this single balancing exercise and judgment, for the sum so reduced is then entered against both defendants. The extent to which each should contribute to the amount of such judgment sum is determined in proceedings for contribution or indemnity between them. The adoption of this approach rather than undertaking separate balancing exercises between the plaintiff and each defendant should result in a just and equitable reduction in damages reflecting the measure of contributory negligence by the plaintiff. In most cases any unfairness that might have otherwise arisen by effectively lumping together disparate levels of blameworthiness on the part of the different defendants will be effectively overcome by subsequent orders for apportionment in the proceedings between those defendants. It is conceivable that such an approach could cause real injustice to a defendant whose level of blameworthiness had been relatively minor if deprived of much of the reduction in damages to which he or she would otherwise have been entitled because the scales were tipped heavily in the plaintiff's favour by the gross negligence of a co-defendant who lacked the means to provide a commensurate contribution. However, no such risk of injustice exists in the present case and I am satisfied that it is appropriate to follow the approach referred to in Barisic v Devenport.

16. Viewed in this light, it must be said that the aggregate blameworthiness of the defendants was substantial. The hazard presented by the constant presence of a pool of oil and/or water on the workshop floor in bay 1 had been caused by the negligence of the second defendant and also permitted to remain effectively unaddressed, despite complaints and safety inspections for about ten years prior to the accident. Both defendants had a clear duty to obviate the risk of injury to people such as the plaintiff who were obliged to work in the workshop. Despite his apparently nominal role as a director, I do not accept that he had a duty to provide himself with a safe place of work or that it was incumbent upon him to find solutions to the problem when his father had apparently tried but failed and when the second defendant, who alone could have authorised remedial work to the concrete floor, had declined to rectify it. On the other hand, the negligence of the plaintiff consisted of undertaking a particular act which, though obviously dangerous, was presumably motivated by a desire to `cut corners' in order to get the job done more quickly. Despite Mr Pilkinton's submission that the plaintiff should be held to have been at least equally responsible for the accident, I am satisfied that his more transient negligence was substantially outweighed by the aggregate blameworthiness of the defendants and that it is appropriate to reduce the damages that would otherwise be awarded to him in respect of the injuries that he sustained in this accident by 20 per cent.

17. Each of the defendants sought contribution from the other pursuant to s 21 of the Civil Law (Wrongs) Act which provides, in essence, that one joint tortfeasor may recover from another such contribution to the damages for which the former is liable as is just and equitable having regard to the extent of the latter's responsibility for the same damage. It was agreed by the defendants' respective counsel that if the net damages for the first accident were to be apportioned pursuant to this legislation, it was appropriate that they be shared equally.

18. However, Mr Pilkinton submitted that the second defendant was entitled to a complete indemnity from the first defendant under certain provisions of the Ampol Dealer Franchise Agreement signed and dated 14 September 1995.

19. First, he submitted that the accident had occurred because the first defendant had breached its obligations under cl 34 of the agreement which was in the following terms:

(a) The Franchisee will at all times maintain the Premises in good order and condition and will whenever necessary and at its own expense:

(i) Keep clean and clear grated stormwater drains, sumps, gully gratings and all compartments of interceptor traps and arrestor pits and such other equipment as required;

(ii) Remove leaves and other debris from roof areas, guttering and downpipes to ensure free drainage at all times;

(iii) Neatly maintain lawns and edges both within site boundaries and on adjoining public areas; regularly remove rubbish; and weed, water and restore planter boxes and gardens and keep the site generally weed-free;

(iv) Keep clean all paving and surfaces including pump islands, kerbs and driveway aprons; and

(v) Replace all broken glass, including plate glass immediately the same is broken.

(b) The Franchisee agrees that the Building and site maintenance specified in clause 34(a) may be carried out by Ampol at the cost of the Franchisee should the Franchisee fail to carry it out after reasonable notice from Ampol.

(c) Ampol will at its own expense maintain the Premises (other than for the items specified in clause 34(a)) except where such maintenance is required due to the neglect of the Franchisee in which case the cost of such repair or maintenance may at the discretion of Ampol be charged to the Franchisee.

20. Mr Pilkinton maintained that if the workshop floor had been kept clean the accident would not have occurred. Hence, the first defendant was in breach of sub cl 34(a) and should indemnify the second defendant for all of the damages for which it was otherwise liable to the plaintiff.

21. I am unable to accept this argument. The second defendant's liability to the plaintiff was founded upon its negligence in creating a mound of concrete which gave rise to the hazard formed by the pooling of oil/water and by its continuing failure to rectify that problem. Both the creation of the hazard and the subsequent failure to rectify it appear to have involved a clear breach of its obligations under sub cl 34(c) of the franchise agreement as well as a breach of its duty to the plaintiff. In my opinion, sub cl 34(a) did not require the first defendant to rectify this problem by, for example, hiring a jackhammer and removing both the concrete mound and the remnants of the hoist it was intended to cover. Indeed, it had a mere licence to occupy the premises and would not have been entitled to modify the premises without the second defendant's consent.

22. The relevant provisions must be construed in the context of the overall relationship between the service station operator and the petroleum company which owned the site and their rights and obligations in whole, under the franchise agreement. In this context, it is quite clear that the first defendant was to assume the general responsibility for keeping the premises clean and to do the other maintenance work listed in sub cl 34(a) but that the second defendant would otherwise maintain the premises. The responsibility for a hazard created by some default on the part of the second defendant, such as fuel pouring onto the apron of the service station from a ruptured pipe which had not been duly maintained, could not be shifted to the first defendant merely by characterising the hazard thereby created as one attributable to the first defendant's failure to mop up the fuel. In my opinion, similar considerations apply to the circumstances which gave rise to the first accident in the present case. The hazard had clearly been created by servants or agents of the second defendant and I do not accept that it can simply be attributed to a failure by the first defendant to clean the floor.

23. In any event, any failure by the first defendant to keep the relevant surfaces clean was by no means coextensive with the second defendant's breach of its duty to the plaintiff not to create unnecessary hazards.

24. More fundamentally, I can see no reason to construe this clause as giving rise to any entitlement by the second defendant to an indemnity in respect of claims based upon its own negligence. Blackburn CJ took a similar approach to an admittedly different clause in Canberra Formworks Pty Ltd v Civil and Civic Ltd (1982) 41 ACTR 1. In that case, his Honour quoted the principle expressed by Buckley LJ in Gillespie Brothers & Co Ltd v Bowles Transport Ltd [1973] QB 400 at 419 that it is "a fundamental consideration in the construction of contracts of this kind that it is inherently improbable that one party to the contract should intend to absolve the other party from the consequences of the latter's own negligence". Blackburn CJ went on to point out that Kitto J had said in Davis v Commissioner for Main Roads [1968] HCA 10; (1968) 117 CLR 529 at 534, albeit in the course of the dissenting judgment, that it seemed impossible to suppose that the parties to the contract in question had been intending that the appellant should indemnify the respondent against claims based upon the respondent's negligence.

25. Blackburn CJ also referred to the contra proferentem rule. In the present case, it cannot be disputed that the second defendant was the proferens of the contract. Had the second defendant intended to require the first defendant to indemnify it against its own negligence then it could clearly have included a clause that explicitly stated that it was to have such an effect.

26. It is true that in Darlington Futures Ltd v Delco Australia Pty Ltd [1986] HCA 82; (1986) 161 CLR 500 the High Court of Australia stated that "the interpretation of an exclusion clause is to be determined by construing the clause according to its natural and ordinary meaning, read in the light of the contract as a whole, thereby giving due weight to the context in which the clause appears including the nature and object of the contract, and, where appropriate construing the clause contra proferentem in case of ambiguity". However, cl 34 is not an exclusion clause and the natural and ordinary meaning of the words, read in the light of the contract as a whole, do not clearly have the meaning that the second defendant seeks to attribute to them. Furthermore, the approach taken by Blackburn CJ in Canberra Formworks Pty Ltd v Civil and Civic Ltd and the cases cited therein provide examples of due weight being given to the context in which the clause appears including the nature and object of the contract, and of the need to construe clauses contra proferentem where appropriate.

27. These conclusions do not have the consequence of wholly relieving the first defendant of any liability to the second defendant by reason of its negligence in failing to clean up oil and water in the area of pooling created by the mound of concrete or otherwise contributing to the causation of the first accident. However, any breach of that duty has no doubt been taken into account by counsel in reaching the agreement to which I referred earlier. In my opinion, cl 34 does not provide any basis for the second defendant to obtain a complete contribution from the first defendant.

28. Secondly, Mr Pilkinton relied upon cl 46 of the franchise agreement which provides as follows:

The Franchisee shall indemnify Ampol, its servants and agents, jointly and severally for and against each claim, demand, award, judgment, damage, loss, expense or liability of any nature suffered by or brought or made or recovered against Ampol in connection with or in any way arising from:

(a) the operation of the Service Station Business by the Franchisee or any other person;

(b) the employment of any persons by the Franchisee;

(c) the use by the Franchisee of the Intellectual Property (other than arising from Ampol's lack of right, as alleged by any party other than the Franchisee, to the use of the Intellectual Property); and

(d) the non-discharge by the Franchisee of any obligation or duties assumed by it in respect of the Premises.

29. Despite Mr Pilkinton's able submissions to the contrary, I do not accept that this clause has any application to the second defendant's liability to the plaintiff in the present case. That liability was not incurred by the second defendant "in connection with or in any way arising from" any of the matters referred to in sub clauses (a) - (d), but by its own negligence in creating a hazard and failing to rectify it. Again, I am unable to see any justification for construing this clause as requiring the first defendant to indemnify the second defendant in respect of its own negligence.

30. Accordingly, it is appropriate that the plaintiff have the benefit of judgment against each defendant for the net amount of the damages due to him in respect of the first accident but that orders on the respective claims for contribution ensure that liability for such damages is ultimately borne equally by each defendant.

31. The second accident occurred on 6 August 1998 when the plaintiff attempted to grab hold of an engine which slipped from a stand in the workshop and suddenly spun around towards him. The second accident clearly occurred because a thick steel pin normally used to hold the engine firmly in place on the stand had been misplaced and the plaintiff's father had instead used a much thinner piece of wire as a pin and it had snapped. Mr Bartley submitted that in requiring the plaintiff to work on an engine which was not properly secured on the stand, the first defendant had clearly breached its duty to provide the plaintiff with a safe system of work. Mr Crowe did not seek to resist a finding of negligence and I accept Mr Bartley's submission.

32. The plaintiff did not suggest that the second defendant was in any way responsible for this accident and no question of contributory negligence arises.

33. The nature and extent of the plaintiff's current disabilities were not substantially in dispute but Mr Crowe and Mr Pilkinton advanced competing arguments as to the extent to which those disabilities may have been attributable to injuries sustained in the first and second accidents.

34. The plaintiff said that he had experienced intense pain in his lower back and left leg after the first accident and that he had initially sought to alleviate it by the use of an ice pack and exercises. On 17 February 1998 he consulted Dr Lamia Nakhal, a locum employed by the practice of his normal general practitioner, Dr Robert Smethhills, who prescribed Voltaren and arranged an X-ray and a CT scan of his lower back. He saw her again on 19 February 1998 when she apparently referred him to a physiotherapist. The pain persisted and he had difficulty sleeping. There were some days when he was unable to work but he generally persevered.

35. He saw Dr Ross Newbery on 15 June 1998. Dr Newbery obtained a history of left sided sciatica which had been present for several months and noted that a CT scan performed on 17 February 1998 had demonstrated a prolapse of the L4-5 intervertebral disc. He diagnosed sciatica due to lumbar nerve root compression caused by intervertebral disc prolapse and recommended analgesia, physiotherapy and back exercises. He felt that the plaintiff would need either Chymopapain injection or surgery and referred him to Dr Bryan Ashman.

36. The plaintiff saw Dr Ashman on 25 June 1998. In evidence, he explained that his back had been deteriorating and was "Getting pretty bad by then". Dr Ashman noted that the plaintiff had presented with a four-month history of left leg pain and that the CT scan in February 1998 had revealed a left sided L5 postero-lateral disc protrusion. He said that the plaintiff had kept working despite the pain but had been taking Voltaren and Panadeine Forte and having physical therapy. He was in obvious discomfort on examination. Dr Ashman offered him an open discectomy procedure and discussed with him the pros and cons of persisting with conservative treatment compared with surgical intervention.

37. Dr Newbery saw the plaintiff again on 6 August 1998, apparently prior to the second accident, and noted that after some improvement his sciatica had again become worse. He expressed the opinion that the plaintiff was moderately disabled by sciatica pain and was unfit for work. On 12 August 1998 Dr John Ditton, to whom the plaintiff had apparently been referred by his regular general practitioner, Dr Smethills, referred to the fact that the plaintiff had had chiropractic manipulation and physiotherapy without benefit and recommended surgical intervention rather than Chymopapain injection. The plaintiff subsequently saw Dr Peter Blum, a neurosurgeon on 11 September 1998, who thought that he had a significant disability and referred him to Dr John Matheson, a specialist neurosurgeon, to see whether a lumbar fusion was indicated.

38. Dr Matheson concluded that he did not need a spinal fusion but on 18 November 1998 performed a discectomy. He subsequently noted that there had been some immediate improvement in the plaintiff's condition but that it had not been sustained. On 21 December 1998 he carried out a further operation on the plaintiff's spine, fusing the abnormal disc, which he described as the L5/6, and the L6/S1 as well as the transitional vertical level. He later reported that the second operation had produced sufficient improvement to allow the plaintiff to return to work, though on lighter duties for restricted hours. He has continuing though intermittent back pain in the left leg. Dr Matheson did not accept the suggestion by Dr Anthony Cairns, who examined the plaintiff at the request of the first defendant, that some further investigation of the spinal fusion was required.

39. The plaintiff apparently works six to eight hours on Mondays, Tuesdays, Thursdays and Fridays, and may work on Saturday mornings. He sometimes takes Panadeine Forte for the pain but tries to avoid using too much before working. He also tries to maintain physical activities such as walking and swimming. He is no longer able to participate in sports such as scuba diving that he had earlier enjoyed and the pain has affected his social life to some extent. He said he felt he was "just coping" with the pain and that it was becoming harder to do so.

40. The plaintiff's sister, Melissa Donaldson, gave evidence that prior to the accidents in 1998 he had always been happy and active. He was often at the gym and frequently spent weekends away with friends in four-wheel drive vehicles. He had always been interested in cars and was both content and confident in his work at the service station. She said that since the accident his confidence had deteriorated and he was no longer in such good spirits. He appeared to be in constant pain all the time. Whilst he had never been a great communicator, it was now more difficult to maintain a conversation with him because he seemed unable to maintain focus and would have to get up and walk around to ease the pain. Viewed overall, his continuing pain clearly has a substantial impact on his life and his expectations for the future.

41. Mr Pilkinton submitted that the plaintiff's disabilities must have been caused substantially by the second accident since he had returned to work during the intervening period and apparently attended at the gym for "squats" and other exercises. In other circumstances evidence of this kind might well have proved decisive. However, the plaintiff seems to have been a conscientious young man who may have been anxious to meet his father's expectations and was apparently prepared to tolerate substantial pain to continue working. Indeed, on the very morning of the accident he had been certified unfit for work by his general practitioner but had returned to his duties. Shortly after the first accident he had sought advice from people at the gym as to what exercises might be beneficial for his back. Some of the exercises seem to have produced a temporary aggravation of his symptoms.

42. In the six months that elapsed between the accidents the plaintiff had seen a number of medical practitioners and had been diagnosed as suffering from sciatica and nerve root compression. The prospect of surgery had been raised with him by both Dr Ashman and Dr Newbery. Considered in context, the evidence does not support the contention that his present condition is primarily attributable to the second accident. On the contrary, the fact that the CT scan demonstrated the presence of the disc protrusion in February 1998 coupled with the severity of the symptoms he experienced and the opinions of the medical practitioners he consulted prior to the second accident provides strong evidence that the primary injury was caused in the earlier accident.

43. Dr Matheson, was clearly of the view that the second accident played a smaller part in the causation of the plaintiff's disabilities, though he said that it would have reinforced the need for surgery. It is true that another neurosurgeon, Dr Warwick Stening, expressed the opinion that the responsibility for the plaintiff's continuing disabilities could be attributed equally to the two accidents. However, as Mr Crowe pointed out, he had been reliant upon a somewhat truncated and inaccurate history. It is also true that Dr Matheson conceded the possibility that, had it not been for the second accident, surgery could have been avoided, but he was clearly of the view that on the balance or probabilities surgery would have been required to address the injuries sustained in the first accident.

44. I accept Mr Bartley's submission that, on the balance of probabilities, the die had been cast by the first accident.

45. Mr Bartley also raised an issue as to whether all or part of the portion of the plaintiff's injuries and disabilities which were actually caused by the second accident should nonetheless be attributable to the negligence of the defendants in causing the first accident. As Mr Bartley pointed out, the relevant principles were succinctly stated by Malcolm CJ in State Government Insurance Commission v Oakley (1990) Aust Torts R 81-003 at 67,577 where his Honour said:

In my opinion, where the negligence of the defendant causes an injury and the plaintiff subsequently suffers a further injury the position is as follows:

(1) where the further injury results from a subsequent accident, which would not have occurred had the plaintiff not been in the physical condition caused by the defendant's negligence, the added damage should be treated as caused by that negligence;

(2) where the further injury results from a subsequent accident, which would have occurred had the plaintiff been in normal health, but the damage sustained is greater because of aggravation of the earlier injury, the additional damage resulting from the aggravated injury should be treated as caused by the defendant's negligence; . . .

See also Jefferies v Roads and Traffic Authority of New South Wales (unreported) NSW CA 28 November 1997; Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSW CA 115; and Government Insurance Office of NSW v Aboushadi (1999) Aust Torts R 81-531.

46. In the light of these principles, Mr Bartley submitted that liability for any additional damage suffered by the plaintiff as a result of the second accident should, in any event, be apportioned with responsibility for that part of the damage resulting from an aggravation of the initial injury being treated as having been caused by the earlier accident. Liability for that part of the additional damage would then be apportioned between the defendants accordingly. The balance of the damage caused by the second accident would, of course, be treated as arising solely from that accident and liability would be sheeted home only to the first defendant.

47. Whilst I am reluctant to further complicate the issues of apportionment, the approach suggested by Mr Bartley seems to overlook the observations of the High Court in Jefferies v Roads and Traffic Authority of New South Wales (unreported) NSW CA 28 November 1997); Caltex Tanker Co (Aust) Pty Ltd v Kerr [1999] NSW CA 115; and Government Insurance Office of NSW v Aboushadi (1999) Aust Torts R 81-531 at 527 that concurrent tortfeasors whose negligent acts or omissions occur successively rather than simultaneously may both be liable for the same damage, being a foreseeable consequence of both torts, although one is liable for some only of the damage for which the other is liable and an award of damages against the one would necessarily be less than an award of damages against the other. In the last mentioned case, their Honours added, at 528 that "a negligent tortfeasor does not always avoid liability for the consequences of a plaintiff's subsequent injury, even if the subsequent injury is tortiously inflicted". The decisive questions are whether the subsequent injury was a foreseeable consequence of the first tortfeasor's negligence and whether the chain of causation has been broken by a novus actus interveniens. In that case, their Honours accepted that an exacerbation by subsequent medical treatment may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable but that the original injury should not normally be taken to involve the risk of medical treatment or advice that is grossly negligent.

48. In the present case, it was neither pleaded nor argued that the injuries sustained in the second accident were a foreseeable consequence of the breaches of duty that had caused the initial injuries. However, it is impossible to determine with any real precision the extent of any further injury, the extent to which such injury may have been causally related to the earlier injuries, the extent to which it may have consisted of an aggravation of the earlier injuries and the extent, if any, to which it may have contributed to the plaintiff's current level of disability.

49. Doing the best I can in the context of the paucity of evidence concerning these issues, I find that 90 per cent of the plaintiff's injuries and resultant disabilities were attributable to the first accident and that the remaining 10 per cent were attributable to the second accident.

50. The assessment of the economic loss sustained by the plaintiff as the result of these accidents is complicated by a number of factors.

51. First, it appears that since the second accident he has not only worked reduced hours but has received wages at a reduced rate. The reason for this reduction was not adequately explained.

52. Second, whilst such a claim had not been foreshadowed in the particulars, the plaintiff gave evidence that he had earlier applied to join the ACT Fire Brigade and nurtured the ambition of becoming a fireman. If he had succeeded in obtaining such a position he would apparently have received an income of approximately $1,014 per week. He also claimed to have intended to seek approval to work part time as a mechanic throughout his career as a fireman. I have no doubt that he genuinely nurtured these ambitions. However, the evidence revealed that there are a very large number of applicants for each position offered and that in recent years almost all those appointed to the ACT Fire Brigade have previously been employed at metropolitan brigades in other parts of Australia. Applicants were initially culled by means of a written examination. This was likely to have proved a very formidable obstacle to the plaintiff who conceded that he had not felt competent to complete the application form without assistance. Furthermore, whilst he had previously worked as a volunteer bushfire fighter he had not been employed as a full time fireman. Mr Bartley suggested that I should compensate him for the loss of the chance that he might have secured such employment and suggested that I might allow a figure of 5 - 10 per cent of the earnings that he would have derived.

53. As modest as that claim may seem, I am not satisfied that it is sustainable upon the evidence. A simple comparison of the small number of positions available in recent years with the number of applicants suggests that only a very small percentage could hope to gain employment and, having regard to the plaintiff's limited intelligence and communication skills and the fact that he had not previously been employed as a metropolitan fireman, it would appear that his prospects of selection were significantly less than average. Whilst I accept that he was genuinely attracted to the fire brigade and that he had some genuine interest in pursuing such a career, it also seems unlikely that he would have ultimately been offered and accepted a position or, if he had, that he would have maintained it for more than a relatively short period. He had worked for the service station operated by his parents since 1990 and had been appointed a director of the family company in 1992. As I have mentioned, he seemed to have a somewhat passive personality and, given his description of his father as a "hard man" and his sister's evidence that their father was the "leader of the pack" who made the decisions, I think he would have found it difficult to make such a move if his father had opposed it. Furthermore, when interviewed by a forensic accountant retained on his behalf to assist in establishing the measure of economic loss sustained as a result of the accidents, he had said that he intended to continue working as a mechanic until he could take over the management of the business from his father. In cross-examination he confirmed that this was his intention, though he maintained that he also wanted a career as a fireman. I formed the impression that if he had been forced to choose between these occupations he would have chosen to stay with the family business and maintain his goal of ultimately taking over the management of the service station.

54. The plaintiff's aspirations of maintaining dual careers as a fireman and mechanic seemed somewhat fanciful. He would have required approval from the ACT Fire Brigade to engage in any outside employment and there was no evidence that it would have been given but, even if it had, it seems unlikely that he could have devoted more than a few hours each week to the family business. Indeed, his insistence that he would have been able to continue working at the service station for substantial periods each week in parallel with his career as a fireman seemed to stem not from a desire for a more financially rewarding lifestyle, but from an ambivalence arising from a number of sources including an attraction to work as a fireman, considerations of family loyalty, a reluctance to abandon his aspirations of taking over the business and perhaps, some uncertainty as to his father's reaction. Sadly, his father died of cancer in 2000 and, even if he had been offered and had accepted a position in the Fire Brigade prior to his father's illness and subsequent death, it seems probable that he would have resigned to assist in the business at that time.

55. In Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643 Deane, Gaudron and McHugh JJ said:

If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or, might occur, and adjusts its award of damages to reflect the degree of probability.

56. A similar approach is adopted in determining the potential losses sustained by a plaintiff as a result of events which might have occurred at some time prior to trial had it not been for the accident. In the present case, however, I have ultimately concluded that the plaintiff's prospects of being offered and accepting a position in the ACT Fire Brigade were so low as to be regarded as speculative.

57. Third, there was debate as to whether the plaintiff's claim in respect of future economic loss should be assessed by reference to award rates or the incomes actually obtained by mechanics who, like the plaintiff, have had special experience in servicing four-wheel drive vehicles. However, whilst there was only limited evidence as to prevailing wage rates, I accept Mr Bartley's submission that Mr Kelo's evidence of being prepared to pay about $1,000 per week gross justified a conclusion that a mechanic could reasonably expect a wage within the range of $700-$750 per week net. For present purposes I will adopt the figure of $725 per week which is, of course, at the mid point in that range.

58. It is common ground that the plaintiff's past wage loss, exclusive of any amounts that he had hoped to receive from the fire brigade, amounts to $98,653. Whilst the bulk of this loss was offset by Workers Compensation payments, a claim for a further sum of $3,645 as interest was not disputed and, on the other hand, no further allowance was sought for any past loss of superannuation.

59. Mr Bartley submitted that it would be appropriate to assess the impact of the accident upon his future earning capacity on the basis that he had lost the difference between the income that he might have expected to earn as a fully fit mechanic employed in the open market and the sum of $343 per week that he was currently earning. However, it is important to bear in mind that he is employed by his family company and that his present income appears to reflect a strikingly low rate which may be attributable to other considerations such as the desire to maximise his workers compensation payments. In any event, I am not satisfied that it represents the true value of his labour. In the alternative, Mr Bartley suggested that I should act upon the assumption that he had lost 50 per cent of his capacity to earn what he suggested was the going rate of $750 per week net. Again, I am not satisfied that this level of loss has been sustained by the evidence.

60. It appears that the plaintiff works about 25 to 30 hours per week, though his evidence about this aspect of the case was somewhat unclear. The family company has employed another person, Mr Bakos, who does all of the heavy work that the plaintiff cannot manage but the plaintiff otherwise does everything that he did before the operation. It appears that, despite the employment of Mr Bakos, the net income of the company has not declined over the relevant period. It is true, of course, that I am concerned with the impact which the plaintiff's injuries have had upon his earning capacity rather than with the level of any consequential loss to the company but it is obviously important to ensure that the plaintiff is compensated only for real losses caused by his injury and not for losses artificially created with the intention of inflating his entitlement to workers compensation payments or for any other collateral purpose. Mr Crowe submitted that I should assess his loss of earning capacity by reference to the cost of employing labour to carry out the heavy duties that he is no longer able to sustain, that being about $12,000 - $13,000 per annum. However, such an approach could only be justified if there were grounds for assuming that his income would, in reality, be reduced only by the amount that the family company was obliged to pay for the replaced labour and that this arrangement could be sustained for more than 30 years until the plaintiff retired. As Mr Bartley pointed out, even well run businesses may encounter unexpected difficulties. When the plaintiff assumes its management he may encounter challenges beyond his capacity or the flow of light work may ebb leaving it more heavily dependent upon work beyond his physical capacity. In the open market he would be placed at a significant disadvantage compared with more able-bodied competitors for available jobs.

61. In all the circumstances I think it is appropriate to assess his financial loss at $300 per week. That figure projected to normal retirement age at 65 and subject to the normal discount rate is $324,000. Counsel for both defendants submitted that there should be a substantial discount from this figure to allow for the fact that he had experienced some problems with his back even before the first injury and may, in any event, have become incapacitated prior to normal retirement age. There was evidence that the plaintiff had experienced some back pain prior to the first accident and Dr Alastair Robson had apparently said that he had a gross asymmetry of the transverse processes of the lowest mobile level and suggested operative treatment. However, Dr Matheson said that there had obviously been some subsequent healing and rejected the suggestion that it was unlikely that the plaintiff would have been able to work to normal retirement age performing heavy mechanical duties with this condition, though he accepted that he was at a somewhat higher risk than others without such a condition. Furthermore, the evidence suggested that the plaintiff had not only sustained heavy work as a mechanic since he first became an apprentice at 17 years of age but that he had played sport, including competitive soccer, worked as a volunteer bush firefighter and maintained fitness at a gym. Whilst I have carefully considered the evidence relied upon by counsel for the defendants, I have concluded that it would be sufficient to allow a discount of 15 per cent to allow for the contingencies of life. That leaves an amount of $275,400.

62. I allow a further sum of $24,786 for superannuation.

63. The Fox v Wood component has been agreed in the sum of $19,200.

64. The plaintiff has also made a claim pursuant to the principles in Griffiths v Kerkemeyer in respect of the assistance provided to him in the past and for further assistance that he is likely to require in the future. I accept that he would have required considerable care and assistance, particularly in the period following his two operations and in the circumstances I allow the sum of $13,000. I am not satisfied that he has demonstrated any substantial need for regular assistance in the future though I accept that there may be some occasions when he will encounter particular tasks beyond his physical capacity. Having regard to his age and the nature of his continuing disabilities. I allow a further sum of $10,000.

65. Past out of pocket expenses have been agreed in the sum of $68,754.28. There is no claim for interest in respect of these payments since most of them have been paid on his behalf by the workers compensation insurer.

66. I allow the sum of $90,000 for general damages. I allow a further sum of $4,800 for interest on the sum of $40,000 which is the component I attribute to the pain, discomfort and disruption of the amenities of life that the plaintiff has suffered to date.

67. I allow the sum of $5,000 for future medical expenses.

68. That amounts to $613,238.28.

69. For the reasons given earlier I attribute 90 per cent of those damages to the injuries and disabilities suffered as a consequence of the first accident. That amounts to $551,914.45 which must be reduced by 20 per cent on the ground of contributory negligence. Accordingly, the plaintiff is entitled to damages in respect of that accident amounting to $441,531.56. There will be judgment against the second defendant for that sum.

70. So far as the first defendant is concerned, the plaintiff is, of course, entitled to judgment for that amount together with a further sum of $61,323.83 which represents the remaining 10 per cent of damages referable to the second accident. Accordingly, there will be judgment against the first defendant in the sum of $502,855.38.

71. Whilst, as mentioned earlier, the plaintiff is entitled to verdicts against each defendant which reflect the full amount of the damages attributable to the injuries sustained in the first accident, there must obviously be an order that any monies paid in satisfaction of the judgment by one defendant should be treated as pro tanto diminishing the amount payable by the other in respect of that accident.

72. In the circumstances, I think it is appropriate to order the first defendant to indemnify the second defendant in respect of any monies paid to the plaintiff pursuant to the judgment herein in excess of the sum of $220,765.78 and requiring the second defendant to indemnify the first defendant in respect of any monies paid to the plaintiff pursuant to the judgment herein in excess of the sum of $282,089.60, that being, of course, the judgment sum of $502,855.38 payable by that defendant to the plaintiff, less 50 per cent of the sum of $441,531.56 referable to the first accident.

73. I will hear counsel as to costs.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 5 May 2004

Counsel for the plaintiff: Mr A J Bartley SC with Mr F Tuscano

Solicitor for the plaintiff: Porters Lawyers

Counsel for the first defendant: Mr R Crowe SC

Solicitor for the first defendant: Ken Cush & Associates

Counsel for the second defendant: Mr S Pilkinton

Solicitor for the second defendant: Phillips Fox

Dates of hearing: 24, 25 February, 29, 30 September 2003; 30, 31 March, 1, 2, 14 April 2004

Date of judgment: 5 May 2004