Coward v Binutti Constructions Pty Ltd and Australian Capital Territory [2008] ACTSC 15 (21 February 2008)

Last Updated: 7 May 2008

COWARD v BINUTTI CONSTRUCTIONS PTY LIMITED (ACN 008 566 265)

and AUSTRALIAN CAPITAL TERRITORY

[2008] ACTSC 15 (21 February 2008)

EX TEMPORE JUDGMENT

NEGLIGENCE - motorcycle collision with traffic island - island newly installed - no warning signs - negligence of road authority and contractor admitted - whether contributory negligence - whether failure to keep proper lookout

DAMAGES - personal injury - motor cycle collision - injury to right shoulder - psychological sequelae

DAMAGES - personal injury - loss of earning capacity - report by accountant as expert - observations on assumptions put to accountant as basis for calculations

MBP (SA) Pty Ltd v Gogic [1991] HCA 3; (1991) 171 CLR 657

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

Heywood v Miller [2005] ACTSC 12

Fox v Wood [1981] HCA 41; (1981) 148 CLR 438

No. SC 280 of 2001

Judge: Master Harper

Supreme Court of the ACT

Date: 21 February 2008

IN THE SUPREME COURT OF THE )

) No. SC 280 of 2001

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: IAAN COWARD

Plaintiff

AND: BINUTTI CONSTRUCTIONS PTY LIMITED (ACN 008 566 265)

First Defendant

AND: AUSTRALIAN CAPITAL TERRITORY

Second Defendant

ORDER

Judge: Master Harper

Date: 21 February 2008

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $218,112.82.

2. The defendants pay the plaintiff's costs up to and including 4 January 2008.

1. This is a claim for damages for personal injury arising out of a motor cycle accident on 17 April 2000. The plaintiff was, and is, an experienced motorcyclist. At that time he was 41 years old and he is now 49. He is a married man with two children and a computer programmer with Centrelink and hence a Commonwealth public servant. On 17 April 2000 at about 5.20 pm, he was riding his motorcycle home from work following his usual route south along Athllon Drive, which runs between Torrens and Mawson and a little further south between Torrens and Farrer. The traffic, typically for that time on a working day, was quite heavy.

2. There were two southbound lanes in that portion of Athllon Drive. The plaintiff was riding his motorcycle in the left lane in a line of traffic approaching the intersection of Beasley Street. That intersection is governed by traffic lights. It is the plaintiff's recollection that the lights for southbound traffic were red and that traffic ahead of him was slowing. He slowed also, but did not come to a stop before the lights turned green and the traffic was able to continue on through the intersection. The plaintiff accelerated, reaching a speed which he estimated at between 60 and 70 kilometres per hour. The speed limit for that section of Athllon Drive at that time was 80 kilometres per hour.

3. On the southern side, the Farrer side, of the intersection the configuration had been, until that day, that the left lane commenced as a transit lane immediately south of the intersection and the two lanes for other traffic merged into one a short distance further south. Ordinary cars are not permitted to use the transit lane, which is intended principally for buses, but it was and is permissible for motorcyclists to ride in the transit lane. It was the plaintiff's usual practice to veer left as he passed through the intersection into the transit lane, which was generally relatively free of traffic, unlike the other lanes which at that time on a typical evening carried reasonably heavy traffic.

4. Unknown to the plaintiff, on that day the first defendant, under a contract with the second defendant, had commenced work on a reconfiguration of the traffic islands and kerbing designed to control the flow of traffic. It is apparent from photographs and a plan in evidence that until then, the configuration on the south-eastern corner of the intersection had been such that there had been a slip lane for westbound traffic in Beasley Street turning left into Athllon Drive, so that such traffic passed to the south of a triangular traffic island and into Athllon Drive.

5. It is apparent from the plan that there would have been a tendency for such traffic to enter the transit lane, which except in the case of buses and motorcycles would not have been permissible. I assume that it was for that reason that the Territory decided to change the configuration so as to direct traffic into the unrestricted lanes. In any event, the works consisted of a curved section of concrete kerbing which extended at an angle across the transit lane, effectively blocking it to southbound traffic so that such traffic could not enter it until a short distance south of the intersection.

6. The plaintiff's evidence is that he saw the hazard presented by the concrete work just as he got through the intersection, he estimated about nine metres away, and at a time and distance, having regard to his speed, when it was too late to avoid a collision. He determined not to brake because that would have had the effect of compressing the front forks of the motorcycle. These thoughts must have gone through his mind in a split second, but he determined that his best chance was to try lighten the load on the front of the bike with a view to lifting the front wheel over the barrier. At all events it was too late for that to be an effective manoeuvre. He struck the barrier, was thrown from his bike onto the road and suffered serious injuries.

7. The defendants, being the Territory and the contractor, have admitted negligence, but have left in issue contributory negligence on the part of the plaintiff, particulars of which are riding his motorcycle at an excessive speed in the circumstances and failing to keep a proper lookout. I have not had a view of the intersection, but the photographs in evidence taken from the northern side of the intersection facing south are helpful in providing a picture of what would have confronted someone in the position of the plaintiff.

8. The photographs were taken by the plaintiff's wife the day after the accident, but at a time when the area was relatively free of traffic. They are taken from a position off the carriageway to its east rather than from the middle of the left southbound lane where the plaintiff would have had a view of what was ahead of him. I take account of the fact that this was not the first time the plaintiff had been through this intersection. He rode through it regularly, a course which he followed virtually every evening of every working day. The defendants concede that there should have been barriers or warning signs and that there was nothing of that kind.

9. It does not seem to me that the plaintiff can be criticised for accelerating towards and into the intersection as he did. I accept his estimate of speed of between 60 and 70 kilometres per hour. I can see no basis for criticism of him for travelling at that speed in an 80 kilometre zone in those traffic conditions.

10. The question arises whether he could or should have seen the hazard earlier than he did. I take account of the fact that he was in a line of traffic, following cars which probably impeded his view of the road surface ahead and to his left. I accept that he first saw the hazard about nine metres ahead. It seems to me that that was in no way inconsistent with his keeping a proper lookout.

11. In short, I conclude that the plaintiff was presented with a hazard at a time when it was too late for him to avoid it. I can see nothing in his conduct which would be capable of amounting to a failure to take reasonable care for his own safety such as to amount to contributory negligence. The plaintiff is entitled to succeed against both the defendants without any reduction.

12. The plaintiff was taken by a workmate who was in the vicinity, and realised what had happened, to the Canberra Hospital where he was admitted as an inpatient. He was found to have suffered multiple fractures of four of his right ribs and a right pneumothorax and lung contusion. He had also suffered a comminuted fracture of the right scapula and a rotator cuff injury of the right shoulder involving the supraspinatus tendon. In addition, not surprisingly having regard to the circumstances of the accident, he suffered general bruising to other parts of the body.

13. He was discharged from hospital on 21 April, four days after the accident, into the care of his general practitioner, Dr George Chan of Wanniassa. Dr Chan saw him the next day. He was still in severe pain especially around the right chest, and had difficulty breathing. Dr Chan prescribed antibiotics and referred him to a physiotherapist for chest drainage. Over time his physical injuries improved, but the course of his recovery was considerably complicated by an incident which occurred while he was in hospital.

14. He was, as part of the diagnostic procedures, subjected to radiological scanning in a scanner into which his whole body was moved into a very confined space. He was taken out of the scanner at least once so that one arm could be tied back above his trunk so that the scan would provide a clearer view. He was taken out a second time and his other arm fixed above his head. His recollection was that he was in the scanner for about a quarter of an hour. He suffered what he described as a panic attack and what might be described as a claustrophobic reaction. His heart rate increased and he developed rapid breathing.

15. As if that were not bad enough, subsequently while he was still in hospital, in bed and propped up by pillows, somehow as he turned, he fell between the metal side of the bed and the padding. He was unable to move. It is not clear precisely how long he was there, but it sounds as though it was at least an hour and possibly two hours before a nurse found him and helped him out of that position. This incident triggered a further panic attack with similar symptoms. The plaintiff came home from hospital on discharge where he was looked after by his wife. She was at that time pregnant and within about two months of the arrival of her baby.

16. During the four weeks or so that the plaintiff was off work, his wife provided various services and assistance to him. As she progressed towards the end of her pregnancy, her mother and the plaintiff's mother visited Canberra and helped to look after him. The plaintiff went back to work in due course, but whilst his physical injuries were improving, his psychological symptoms became progressively worse. There were other incidents where he suffered panic attacks. He became increasingly anxious that further attacks would afflict him.

17. He decided to take seven weeks off over the Christmas period at the end of 2000, thinking that time off work might resolve these problems. This was not to be. Ultimately Dr Chan diagnosed him as suffering from post-traumatic stress disorder and prescribed an antidepressant drug, Effexor. This succeeded in gradually reducing gradually the plaintiff's level of panic. I do not propose to go through the period since, or his treatment, in detail, but over the years he saw Mr Leigh Nomchong, a clinical psychologist; Dr John Saboisky, a psychiatrist; and Dr Chan, his general practitioner, who continued to monitor his progress.

18. He was initially seen by Dr Saboisky for Comcare, having been injured on his way home from work and hence entitled to Comcare benefits. Dr Saboisky subsequently became involved in a treating capacity. No medical or health practitioners gave oral evidence. Reports were in evidence from Dr Chan, Mr Nomchong and Dr Saboisky and also from practitioners who saw him for medico-legal purposes, Dr Robert Tym, psychiatrist; Dr Graeme Griffith, surgeon; and Dr William Coyle, orthopaedic surgeon.

19. In summary, the plaintiff has been left, by the time of the hearing, almost eight years after the accident, with some continuing physical disabilities. His general practitioner, Dr Chan, noted in a report in August 2006 that he continued to suffer from pain in the right shoulder, had difficulty lifting weights of more than 10 to 20 kilograms and had restriction in movement and strength of the right shoulder. Dr Chan noted that he had pain on moderate exercise and pain on riding his motorcycle. He expressed the opinion that the plaintiff would need to continue with gym work for right shoulder strength and with acupuncture for pain relief, though it was unlikely that he would require surgery for his right shoulder.

20. Dr Chan also noted at that time that the plaintiff was easily upset, angry, irrational and anxious, and had reduced concentration. He had found it difficult to handle the stress of his work and there had been problems in his relationships with his wife and children at home because of his behaviour. He had gradually withdrawn socially and appeared to have lost interest in interacting with other people. He became easily upset and angry. His anxiety and claustrophobia were still present at times, especially in crowded or unfamiliar places. He had developed a fear of flying and had avoided situations where he felt vulnerable.

21. The plaintiff reported to Dr Chan that he felt embarrassed to swim in public because of a deformity in the area of his right shoulder and the right side of this chest, which I am unable to find is objectively measurable, but which I am satisfied the plaintiff believes to be a deformity and a cause of embarrassment.

22. Some of the doctors have expressed the opinion that there was treatment available which might assist the plaintiff to get over some of these symptoms. Dr Chan mentioned acupuncture. Dr Griffith thought that there might be some benefit if the plaintiff's shoulder area was injected with local anaesthetic and depo-steroid. Mr Nomchong thought that the plaintiff would benefit from regular sessions of cognitive behaviour therapy over a period of six months. Dr Robert Tym, a psychiatrist who saw the plaintiff for one of the defendants, recommended a rapid eye movement therapy program. The plaintiff did not give evidence that he intended to proceed with any of those treatments. None of the practitioners who suggested them expressed the view that they were likely to resolve his problems. It seems to me more likely that he will continue with conservative treatment in the form of Effexor, probably at a reduced dosage, exercise and perhaps acupuncture from time to time.

23. The past treatment expenses are agreed at $11,262.70. I allow that amount. Of that sum, $3,473.90 has been paid by the plaintiff himself. In the absence of specific evidence about dates of payment of specific sums, it seems to me fair to apportion that amount evenly over the period since the accident and to allow interest at the prescribed rate of 9% per annum over seven and a half years, divided by two to reflect the even spread over the period. I allow interest calculated in that fashion at $1,172.00.

24. In relation to loss of earnings, the plaintiff's income was made up by Comcare for the period up to 26 July 2000 in a gross amount of $13,434.12. Whilst he lost income of only the net portion of that after tax, the tax is recoverable under the principle in Fox v Wood [1981] HCA 41; (1981) 148 CLR 438. I find no need to apportion the amounts. I simply allow $13,434.12 for loss of earnings for the period from the accident up to 26 July 2000 including the Fox v Wood component.

25. For subsequent absences from work the plaintiff took sick leave and relied on credits which he had built up over many years in the public service. The value of the sick leave which he took is $5,884, but he has not necessarily lost that amount. He still has significant credits. He is still working and continuing to build up credits. But he is entitled to be compensated for the possibility that he might one day need to take sick leave at a time when his entitlement may not be available because of the sick leave he has taken as a result of this accident. He has had absences from work due to illnesses unrelated to the accident during the last twelve months. It seems to me not unlikely that he will in the future need to rely on his accumulated sick leave credits. In the circumstances, it seems to me appropriate to allow an amount of $3,000 for loss of sick leave credits.

26. In relation to general damages, I invited counsel to suggest a range. Counsel for the defendant proposed a range of $70,000 to $75,000. Counsel for the plaintiff proposed a range of $80,000 to $90,000. I am persuaded that the effect on this plaintiff of these injuries has been very significant. The effect has been to change his life and his enjoyment of life very significantly. I am satisfied that whilst the level of that change may be alleviated in the future, the change in significant measure will be with him for the rest of his life. It seems to me that an appropriate figure to compensate the plaintiff by way of general damages is $90,000. I award that amount.

27. The general damages award attracts interest. I would propose to apportion the general damages as to 50% to the past and 50% to the future, taking account of the fact that it is approaching eight years since the accident and that the plaintiff is now 49 years of age. There is no reason to suppose that his lifespan has been reduced by these injuries so that he has many years ahead of him. I award interest on half of the general damages for a period of seven years and ten months, applying the rate prescribed by the High Court in MBP v Gogic (SA) Pty Ltd [1991] HCA 3; (1991) 171 CLR 657 of 4%, but taking account of the fact that the past general damages should be seen as notionally accruing over the period of almost eight years since the accident, though with a weighting towards the months immediately after the accident. Taking all of those factors into account, I allow $9,000 for interest on the past component of the general damages.

28. The plaintiff will incur expense for treatment in the future. He will need to see his general practitioner from time to time. He will continue with a reduced dose of Effexor, probably indefinitely. He may have other treatment, perhaps in the form of acupuncture. He may incur other expenses in relation to an exercise regime. I allow $5,000 for future out-of-pocket expenses.

29. In the first two months after the accident the plaintiff required assistance and care from his wife and, to a lesser degree, from his mother and his mother-in-law. I propose to allow an average of four hours a day for sixty days at $22.00 an hour for those services, that is, for the Griffiths v Kerkemeyer component, an amount of $5,280.00.

30. That component attracts interest at the prescribed commercial rate of 9% per annum over the period of seven and a half years since that sixty-day period came to an end. That interest amounts to $3,564.80.

31. The plaintiff makes a claim for past loss of earnings over and above the initial period for which he was paid by Comcare and the period for which he took sick leave. In relation to that component, a lengthy report was in evidence by Mr Geoff Davis, an accountant with many years of experience in preparing calculations of loss of earnings and loss of earning capacity in personal injury claims. Mr Davis was asked to make assumptions for the purpose of expressing his opinion about these matters, but these have not been made out on the evidence. In qualifying an accountant such as Mr Davis to give expert evidence in a matter of this kind, it is far more helpful to ask the expert to make assumptions which are likely to be made out on the evidence and perhaps to ask him to prepare figures on the basis of two or even three sets of assumptions, ranging between the most and least optimistic.

32. The assumptions Mr Davis was asked to make in relation to past economic loss were that the plaintiff would be promoted from his then level as a public servant, that is Executive Level 1 pay point 13, to Executive Level 2 at pay point 14 in October 2000 and that he would have further increases to pay points 15 and 16 within about two years of the accident. It does not seem to me that there was any factual basis for those assumptions. This means that the extensive and detailed calculations carried out by Mr Davis are generally unhelpful.

33. I should make some allowance for the possibility that the plaintiff would have been promoted over the period of almost eight years since the accident, if it had not been for his injuries. He remains at the same level now as he was at the time of the accident. On the basis of Mr Davis' assumptions, he would have been entitled to an amount of about $50,000.00 to cover the difference between what he has earned since the accident and what he would have earned if those promotions had come to pass.

34. Applying the principles set out by the High Court in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, it is incumbent on the Court to assess the chance that the plaintiff might have been promoted to EL2 at some time during that eight-year period, and the chance that short of a promotion he might have been appointed to act at the EL2 level for some period or periods. I propose to assess that chance at 10% of what the loss would have been if Mr Davis' assumptions had been made out. I allow $5,000.00 for past loss of earning capacity additional to the Comcare figure and the sick leave figure.

35. That sum of $5,000.00 attracts interest. It is not a figure which I can reasonably apportion equally over the whole eight-year period. It is far more likely that if there were to be a promotion, it would have been closer to the end of the eight-year period rather than the beginning of it. If I were to allow interest at 9% over the whole period and halve it, I would arrive at a figure of $500.00 for interest. I allow $100.00 for interest on the sum of $5,000.00 for past loss of earning capacity.

36. The calculation of a figure for loss of earning capacity for the future is more complicated. It emerges from Mr Davis' report that the plaintiff is presently on a gross salary of $82,378.00 per annum, or a figure after tax of $61,091.00: that is, $1,171.00 net per week. The present salary of an Executive Level 2 officer at pay point 16 in the Public Service is $99,725.00 per annum gross, or $71,239.00 after tax, that is $1,365.00 net per week. The differential between those two is $17,347.00 gross or $10,148.00 net per annum, that is $194.00 net per week.

37. It seems likely to me, to the extent that it is realistic to project a pattern for the plaintiff's working future if the accident had not happened, that the progression would have been something like this: by about now, some eight years after the accident, he would probably have been promoted from EL1 to EL2 at pay point 14. He might well have been promoted to pay point 15 by about 2015. He might have warranted a further promotion to pay point 16 by about 2020. It is his present intention, as it was before the accident, to work until the conventional retirement age of 65, which he will achieve in January 2024.

38. The principle in Malec v Hutton requires me to assess damages in relation to future events on the basis of the percentage chance that they will or will not occur rather than on an all-or-nothing basis. Mr Davis calculated that the full present value of the plaintiff's loss of earning capacity on the basis of the plaintiff having achieved pay point 16 by now, and spending the rest of his career at that pay point, by comparison with spending the rest of his career as an EL1, was $128,253.00. I am satisfied that there is little likelihood that the plaintiff will progress to EL2 level in the future.

39. Evidence was given by work colleagues, including his superior at the time of the accident, Mr Ken Faulkner, that he was an officer with a strong capacity to undertake the tasks required of his work, strongly motivated and highly regarded. It is clear that that is no longer the case, although the only recent evidence in relation to how the plaintiff is regarded at work is a somewhat cryptic draft performance appraisal report. This was prepared last Friday, 15 February 2008, I infer in something of a hurry. It became apparent when the solicitors for one of the defendants was chasing up Centrelink for documents which had been required to be produced on subpoena that somehow the plaintiff had slipped through the net in relation to performance appraisals in recent years.

40. The recent appraisal is in somewhat more positive terms that seem consistent with the other evidence in the case. It seems to me that the prospect now of the plaintiff advancing beyond his present level is a very low one. However, there is some possibility that he will do so. All things considered it seems to me that an appropriate figure to allow for loss of earning capacity for the future is about half of the present value as calculated by Mr Davis on the basis of his assumptions, that is $65,000.00 and I allow that amount.

41. The individual components of the award of damages are thus as follows:

Treatment expenses for the past $11,262.70

- Interest on portion paid by the plaintiff $1,172.00

Loss of earnings to July 2000 including tax $13,434.12

Loss of sick leave credits $3,000.00

General damages $90,000.00

- Interest on the past component $9,000.00

Future out of pocket expenses $5,000.00

Griffiths v Kerkemeyer $5,280.00

- Interest $3,564.00

Loss of earning capacity for the past $5,000.00

- Interest $100.00

Loss of earning capacity for the future $65,000.00

Superannuation

- Past loss $450.00

- Future loss $5,850.00

42. The total of those amounts is $218,112.82. There will be judgment for the plaintiff for that amount.

43. After giving judgment, I was informed by counsel that on 10 December 2007, the solicitors for the second defendant wrote to the plaintiff's solicitors in Calderbank terms making an offer of $220,000.00 plus costs, open until 4 January 2008. Generally for the reasons which I expressed in Heywood v Miller [2005] ACTSC 12 it seems to me that I am obliged to give effect to that offer and to the fact that the plaintiff rejected it. I order that the defendants pay the plaintiff's costs up to and including 4 January 2008, and make no order in relation to costs incurred subsequent to that date.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.

Associate:

Date: 21 February 2008

Counsel for the plaintiff: Mr GJ Lunney SC

Solicitor for the plaintiff: Romano Satsia Kordis Legal

Counsel for the defendants: Mr RL Crowe SC

Solicitor for the first defendant: Sparke Helmore

Solicitor for the second defendant: Minter Ellison

Date of hearing: 18, 19, 20, 21 February 2008

Date of judgment: 21 February 2008