Fleming v Shoobridge [2009] ACTSC 80 (8 July 2009)

Last Updated: 13 April 2010

CHRISTOPHER JAMES FLEMING v GRAEME SHOOBRIDGE

[2009] ACTSC 80 (8 July 2009)

EX TEMPORE JUDGMENT

NEGLIGENCE – personal injury – motor vehicle – plaintiff standing on passenger side – hand caught in door handle – defendant moving off – defendant should have ensured plaintiff was clear of vehicle – defendant negligent – no contributory negligence

DAMAGES – personal injury – injuries to both knees – future surgery likely – plaintiff warehouse supervisor – impairment of earning capacity – no issue of principle

Ratcliffe v Jackson (1993) 18 MVR 291

Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40

No. SC 127 OF 2007

Judge: Master Harper

Supreme Court of the ACT

Date: 8 July 2009

IN THE SUPREME COURT OF THE )

) No. SC 127 of 2007

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: CHRISTOPHER JAMES FLEMING

Plaintiff

AND: GRAEME SHOOBRIDGE

Defendant

ORDER

Judge: Master Harper

Date: 8 July 2009

Place: Canberra

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $325,000.00

2. The defendant pay the plaintiff’s costs.

1. This is a claim for damages for personal injury arising out of a somewhat unusual incident involving a motor vehicle. The claim is made against the registered owner of the vehicle, who is the stepfather of the driver, Tracey Johnston. The plaintiff was born in Canberra in 1974 and he will be 35 next month. The accident happened on 14 August 2006. The plaintiff was then in a long term relationship with Tracey. At that time their household consisted of the plaintiff and Tracey, her son Matthew who is now 14 and would then have been 11, the plaintiff’s son Michael then nine and now 12 years old, and the daughter of the plaintiff and Tracey, Emily, who was then three and is now five.

2. The accident happened at about 3.00 pm on the plaintiff’s 32nd birthday. The plaintiff had come home early from work. He had a conversation with Tracey, who was sitting in the driver’s seat of the car with the engine running. The plaintiff was standing on the passenger side of the car. He spoke to her through the partly open front passenger window. The car was stationary outside their home. The plaintiff in the course of the conversation adopted a position where he was leaning against the passenger side of the car with his right arm resting on the windowsill and his left hand through the front passenger door handle.

3. At the end of their conversation the plaintiff moved back from the car as the driver started the car to drive off. His hand had not been removed from the door handle. It was caught in the handle as the car moved forward. He was dragged a distance of perhaps five or six metres, falling to his knees and being dragged on his knees on the jagged bitumen surface of the street which had recently been resurfaced.

4. In relation to liability I have been referred by counsel for the plaintiff to the decision of the Full Court of the Supreme Court of Tasmania in Ratcliffe v Jackson (1993) 18 MVR 297, a decision of Cox, Underwood and Crawford JJ. Green CJ at first instance had found for the defendant at trial. His decision was reversed by majority (Cox and Underwood JJ, Crawford J dissenting). Cox J, having earlier referred to the principled approach to a case of this nature emerging from Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 and subsequent decisions, said at 302:

The simple precaution of the respondent delaying his departure by a few more seconds would have increased the chance that if she were caught, or had any reason to re-open the door, the driver would be made aware of her being in contact with the car and would have minimised the risk of injury when the car did proceed. Such a precaution would be attended with no expense, difficulty or inconvenience. There was nothing in the evidence to suggest that the respondent was under any pressure from surrounding circumstances. . . . In my view, the response of the reasonable driver to the risk presented would have been to delay his departure until he had observed the appellant to be out of close proximity to the car, or at the least until there had been time for the appellant to move well clear, or had she been impeded in doing so, to attract his attention to her predicament by calling out or beating on the car. In those circumstances . . . I am of the opinion that the respondent has been shown to be in breach of his duty of care to the appellant, and that she should have judgment entered against him for damages to be assessed.

Underwood J at 305 referred to similar expressions of principle in decided cases and said:

I reach the conclusion, with respect, that the learned trial judge fell into error when he inferred that the reasonable person would have done no more than did the respondent in response to the risk. He did nothing at all. The risk of injury being caused by driving off after two seconds could have been avoided without the respondent getting out of his car or keeping the appellant under observation continuously from the moment she alighted. It could have been avoided or substantially reduced by measures that were neither difficult nor inconvenient, and which would have of course involved no expense. Turning around before moving off to look at the appellant, looking in a mirror in order to see the appellant and seeing her, as opposed to looking at traffic in the mirrors, or simply waiting a little longer than two seconds before moving off would have avoided or greatly diminished the risk of injury. Weighing the magnitude of the risk of injury against the probability of its occurrence, and taking into account the ease with which it could have been eliminated or substantially reduced, any one of those things would have been the response of a reasonable person in my respectful view. The respondent’s failure to take any one or more of these steps was, in my opinion, a breach of the duty of care he owed the appellant and causative of the injury, loss and damage sustained.

5. The facts in Ratcliffe v Jackson were very similar to the facts in the present case. A difference drawn to my attention by counsel for the defendant is that the plaintiff in Ratcliffe v Jackson had been a passenger who had got out of the car and then closed the door, inadvertently closing it on part of her clothing. In the present case the plaintiff had not been a passenger in the car, but had merely been standing next to it. I am not satisfied that that factual distinction reduces to any degree the duty of care which the driver of the car in the present case owed to the plaintiff not to drive away without ensuring that in doing so she would not subject him to the risk of injury.

6. I accept that the risk was a slight one, but for the driver of the defendant’s car the risk could readily have been removed entirely if the driver had ensured by looking at the plaintiff direct or in the passenger side external mirror on the car, that he was properly away from the car and out of any danger area before she moved off. I am satisfied in all the circumstances that the driver of the defendant’s car was in breach of the duty of care which she owed to the plaintiff not to subject him to the risk of injury.

7. The defendant pleads that the plaintiff was guilty of contributory negligence in failing to take reasonable care for his own safety. In submissions by counsel for the defendant it was put that the defendant should not have placed his hand inside the door handle of the front passenger door of the vehicle. Whilst that is the sort of observation that can be understandably made with the benefit of hindsight, and I am sure the plaintiff will never do such a thing again, it does not seem to me, considered objectively, having regard to the plaintiff’s state of mind at the time, that any criticism can attach to him for having done that. There was no reason, objectively considered, for the plaintiff to have supposed that the driver might have driven off whilst his hand was in that position or, indeed, for the plaintiff to have been aware of the fact that there was likely to be any difficulty about removing his hand from the door handle before the car moved off. I am not satisfied that the plaintiff was guilty of any contributory negligence.

8. The plaintiff was taken after the accident to Calvary Hospital, where he underwent surgery to both knees. He was discharged initially in a wheelchair and underwent physiotherapy for a month. He was employed at the time as ACT Operations Manager by Pickfords through a subsidiary, Iron Mountain (Australia) Pty Ltd, at its premises at Mitchell. He was responsible for other operations of the company at other sites in Canberra. He had been to school in Canberra up to Year 10. He had no academic or trade qualifications, though he had an unbroken work history from the time he left school. He returned to work with the company in a wheelchair and later, when he was able to cope out of the wheelchair, on crutches. The employer was unsympathetic to his plight. On 10 January 2007 he was demoted from the position of ACT Operations Supervisor to the position of supervisor of the Mitchell warehouse, and his salary was reduced accordingly. On 19 January 2007 his employment was terminated in circumstances which the employer sought to characterise as a resignation, but which the plaintiff saw as a termination by the employer. Since then the plaintiff has been on Centrelink benefits. He has applied for numerous jobs without success, and he has not been gainfully employed since then.

9. I have had the benefit of reports by Dr Endrey-Walder, a general and trauma surgeon, and Dr Hunter Fry, a plastic and reconstructive surgeon, qualified by the solicitors for the plaintiff, and by Dr Geoffrey Stubbs, a Canberra orthopaedic surgeon, and Dr Chris Oates, an occupational physician, qualified on behalf of the defendant.

10. The picture which emerges from the medical reports is that the plaintiff will not improve unless he has surgery to both knees. I am satisfied that that is the case, and that the plaintiff when he can afford to do so will undergo the surgery. I am satisfied that the surgery is likely to result in a significant improvement in his condition, an improvement which, on balance, is likely to result in him becoming fit for full-time employment in areas of work for which he is qualified by experience, such as the supervision of storage warehouses. Nevertheless, I am satisfied that he will be left more vulnerable than he would have been if it had not been for the injury.

11. I am satisfied that he suffered excruciating pain at the time of he injury, and that he has suffered very severe pain since then, particularly on the occasions when, unavoidably in the circumstances of ordinary life, he has bumped one or other of his knees. He has suffered other sensory symptoms which have been extremely unpleasant for him. The pain has interfered with his sleep. The injuries have caused him to suffer from anxiety and from depression in the lay sense of that word, there being no psychiatric evidence of depression in its specialised meaning. I am satisfied that the plaintiff’s injuries led to the break-up of his long term relationship with Tracey, and that one of the causes of the break-up was a serious interference with his capacity to engage in sexual relations. All of these symptoms I find will improve if the surgery which I think he will undergo is generally successful.

12. With that background I proceed to the assessment of damages. I invited counsel for the parties to put figures to me in relation to general damages for pain and suffering and loss of enjoyment of life and for disfigurement. Counsel for the plaintiff suggested a range of $100,000.00 to $120,000.00. Counsel for the defendant suggested a figure for general damages of up to $55,000.00. On reflection, and considering all of the various aspects of life which are relevant to the assessment of a figure for general damages, I award $100,000.00. I also invited submissions from counsel as to how that general damages figure should be apportioned as between past and future, that being relevant to the calculation of interest. Counsel for the plaintiff suggested two-thirds to the past. Counsel for the defendant suggested three-quarters to the past. On consideration, I apportion 70% of that figure to the past and 30% to the future.

13. The past component of the general damages award attracts interest over the period of just on three years since the injury at the rate of 4%, apportioned over the period, a little more highly to the early period after the injury. I award $5,000.00 for interest on general damages. The past treatment expenses are agreed up to about a week ago: I have taken that extra week into account in rounding the figure for past treatment expenses up to $1,250.00. There is no claim for interest on that amount.

14. For future treatment the approach is necessarily a generalised one. I take account of the fact that the plaintiff is likely to have surgery, with the attendant surgical, hospital, anaesthetic and other expenses, and that there may be other expenses for medication incurred in the future. I award a general figure of $25,000.00 for future treatment expenses.

15. The claim for past loss of earnings is not seriously contested by counsel for the defendant. I award $95,250.00 for past loss of earnings, plus interest at the prescribed commercial rate of 9% per annum averaged over the period, which results in a figure of $9,000.00 for interest on past economic loss. A claim is made for past loss of superannuation benefits for which I allow $10,500.00.

16. For impairment of earning capacity for the future, again this is an area which is not susceptible to a precise mathematical approach. In arriving at a figure I take account of the possibility that the surgery will not be as successful as the medical practitioners hope it will be, and I take account of the fact that the plaintiff may, because of these injuries, be exposed to periods when he will not have an income, whereas if it had not been for the injury he would have done so. I award a figure of $60,000.00 for loss of earning capacity for the future.

17. There is a claim for gratuitous services provided to the plaintiff consequent upon a need arising from the injuries. The past aspect of that part of the claim is not seriously in contention. I award $6,000.00 for the past Griffiths v Kerkemeyer component. That award attracts interest at commercial rates, in respect of which I award $1,000.00. For the future Griffiths v Kerkemeyer component of the claim I award $12,000.00.

18. The individual components of the award, in summary, are:

General damages $100,000.00

Interest on general damages $5,000.00

Treatment expenses

- past $1,250.00

- future $25,000.00

Loss of earning capacity

- past $95,250.00

- interest $9,000.00

- future $60,000.00

Past loss of superannuation benefits $10,500.00

Griffiths v Kerkemeyer component

- past $6,000.00

- interest $1,000.00

- future $12,000.00

$325,000.00

19. There will be judgment for the plaintiff against the defendant in the sum of $325,000. I order that the defendant pay the plaintiff’s costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 8 July 2009

Counsel for the plaintiff: SH Pilkinton

Solicitors for the plaintiff: Blumers Personal Injury Lawyers

Counsel for the defendant: WL Sharwood

Solicitors for the defendant: DLA Phillips Fox

Date of hearing: 7, 8 July 2009

Date of judgment: 8 July 2009