Griffiths v Kerkemeyer (1977) 193 CLR 161

John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, (2000) 74 ALJR 1109

Matthews v Dean (1990) 11 MVR 455

Roberts v White [1999] NSWCA 12 (1999) 29 MVR331

1. Judgment be entered for the plaintiff in the sum of $160,185.25

1. This is a claim for damages for personal injuries arising from a motor vehicle accident which occurred on 16 April 1998 on the Turpentine Road near Tomerong in the Nowra district of the New South Wales south coast. The plaintiff, a Canberra resident, brings his action properly in this Court, but it was common ground between the parties that, pursuant to John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36, (2000) 74 ALJR 1109, the law to be applied in the assessment of damages was the law of New South Wales.

2. The accident occurred as the plaintiff and his family were returning to Canberra after an Easter holiday with his brother in law, who was the driver. The vehicle in question was a Mistubishi van, and it was described as a tradesmans van used by the defendant in his painting business. The plaintiff sometimes did casual work for the defendant, and he said that he had been working for him the week before, and noticed that the rear bench seat seatbelt buckles were jammed with paint and did not work. At the time of the accident the plaintiff was not wearing a seatbelt.

3. On the afternoon of April 16, which was the Monday, they were returning from their holiday, which had been spent near Batemans Bay. They decided to come home a different way, and to take the Turpentine Road which goes from near Nowra to Braidwood. This is an unsealed road for much of its length. The plaintiff's evidence is that he was a rear seat passenger. He noticed that the road was unsurfaced, and he said that suddenly, "we fall in a hole". He said that after this bump his brother, "make a harsh brake, and the van lost control". The van then rolled over several times.

4. The defendant's primary submission was that, on the evidence before me, I could not find liability against the defendant, as there was no evidence that he had not driven in a safe manner. The matter was pleaded in what may be described as the normal manner, with the allegation being that the plaintiff's injury was caused by the negligence of the driver, the particulars being:

"(i) failing to keep any or any proper lookout;

(ii) failing to keep the van under any or any proper control;

(iii) driving the van at a speed which was excessive in the circumstances;

(iv) failing to keep his motor vehicle on the roadway."

5. The defendant was not called to give evidence, and it seems to me that I can draw the appropriate inference from this, but even without this inference I am satisfied that, after the van hit a bump, the defendant braked hard and lost control of the vehicle, thus making out particulars (ii) and (iv) of the alleged particulars of negligence. It seems to me that I can also properly infer particulars (i) and (iii) particularly given the uncontradicted evidence that the defendant had never been on this road, which was unsealed and traversed a mountainous area. The plaintiff was not in the front seat, and his failure to give evidence of speed or what the driver could or should have seen is not, it seems to me, fatal to his case. I am satisfied on the evidence before me that the accident occurred as a result of the defendant's negligence as pleaded.

6. Contributory negligence was pleaded in respect of the plaintiff's failure to wear a seat belt. This fact was admitted, but the plaintiff said that it was not possible for him to wear a seatbelt as the seatbelt buckles were jammed with paint. He says that he was aware of this when he was helping his brother in law, the defendant, to clean the van before the trip, but the defendant said he would fix it. When they left on the trip, the problem had not been fixed, and the plaintiff said that it was not for him to fix the problem, because it was not his car, and his brother in law would be angry if anyone interfered with it.

7. The Motor Accidents Act 1988 (NSW) provides in section 74 that:

(1) "The common law and enacted law as to contributory negligence apply to claims in respect of motor accidents, except as provided by this section.

(2) A finding of contributory negligence shall be made in the following cases:

(c) where the injured person not being a minor was, contrary to the requirements of the Motor Traffic Regulations, not wearing a seatbelt as required by those regulations at the time of the motor accident."

8. It was common ground that this provision applied in the circumstances of this case. On further research, however, it seems to me that the effect of the Motor Traffic Regulations 1935 NSW reg 11F(6)(c) may have been overlooked. Regulation 110 imposes the obligation to wear a seatbelt, but regulation 110F(6)(c) provides that the regulation,

"..does not apply in respect of a seat belt that is damaged or defective and that is not capable of being worn or of being properly adjusted or securely fastened".

9. This regulation, it seems to me, operates so as to remove the plaintiff from the effect of s74(2) where the unchallenged evidence is that the seat belt was defective. (c.f. Lee v Burn (1998) 27 MVR 186).

10. Although in my view the plaintiff is not caught by s74(2) due to the defective nature of the seat belt, s74(8) provides, "this section does not exclude any other ground on which a finding of contributory negligence may be made."

11. I am not satisfied that the fact that the seat belt was not working relieves the plaintiff of his contributory negligence. He knew of the defect before he embarked on the trip. He knew on the way down to Batemans Bay that the seatbelt was not working, and he knew of the defect the whole of the weekend. He admitted that he had some knowledge of mechanics, and even said that he could probably fix the belt buckle, but claimed that his brother in law would not like this. Nevertheless, he knowingly embarked on a long trip with no seat belt. It seems to me that this amounts to contributory negligence on his part. I therefore make the finding of contributory negligence pursuant to s74(8) of the Act. Where such a finding is made, the Act further provides (s74(3)) that the damages, "recoverable in respect to motor accidents shall be reduced by such percentage as the court thinks just and equitable." It is therefore appropriate to assess damages, and then make the attribution between the plaintiff and the defendant.

12. The plaintiff sustained quite severe injuries in the accident. He was taken first to the Shoalhaven Hospital by ambulance. He was examined by a doctor there and put in a neck brace and given painkillers and released the next day after x rays which apparently found no abnormality. Abrasions and soft tissue injuries were suspected, and he returned to Canberra. He was in increasing neck and arm pain, and he saw a doctor at his normal general practitioner's rooms on 18 April. He continued to complain of extreme neck and shoulder pain, and on 21 April he was referred for a shoulder x ray, which showed no abnormality. He continued to complain of pain, and was referred to Dr Tuck, an neurologist, on 27 April, who suspected a problem in the cervical spine, and arranged for a CT scan, which revealed injury at C5/6 and C 6/7. He was urgently referred to Dr Chandran, neurosurgeon, who fortunately was available to see him and recommended that he undergo immediate surgery to stabilise the neck. It is apparent that this undiagnosed fracture to his neck could have lead to very dire consequences had it not been detected, and had Dr Chandran not been able to move quickly to surgery.

13. He was placed in traction to immobilise the cervical spine overnight, and on 29 April a fusion procedure was undertaken by Dr Chandran. He reports disruption to the C5/6 disc and a rupture at C 6/7, both attributable to the motor vehicle accident. The discs were excised and the nerve roots decompressed, and a locking plate inserted to stabilise the spine. Dr Chandran has reported that the surgery has been successful, but that a person who has undergone such a procedure should always avoid heavy lifting. There is no particular dispute between the various reporting doctors on the orthopaedic aspects of his case, with Doctors Andrews and McEwin, who examined him for the defendant, agreeing that his fusion has been successful, but that he is left with a degree of impairment of movement in the neck, and a permanent limitation on heavy lifting tasks.

14. There has been some psychological sequela to the accident, and in assessing this aspect of the plaintiff's claim it is important to review his background. Mr El-Syoufi was born in Lebanon, in 1962, and came to Australia in 1991. His father has some involvement in the Lebanese government, and after a year at university he found work as a sub editor in a newspaper, working with photography. In 1985 he was quite badly injured in a car bomb explosion outside his apartment. This was a major terrorist incident, with some 150 killed and over 300 injured, and the plaintiff says that when he was first admitted to hospital, which was chaotic, the doctors told him that they would have to amputate his foot, which had been badly injured. He objected, and a dispute followed, ending when he says he stabbed a doctor with scissors. In the end the foot was not amputated, and was restored to use, although the skin grafts are not totally successful. The plaintiff says that, after this experience, he has a particular aversion to hospitals.

15. In 1987 the plaintiff was kidnapped by a militia group, and held captive for some 18 months in an underground cell. He described conditions as "bad", and said that he was threatened with death on a number of occasions. It is apparent that this was because "his ideas were different", and probably flowed from his work in the media. Mr El-Syoufi gave evidence of this in a matter of fact manner, and yet these experiences highlight in such a dramatic manner the dangerous life he left behind in Lebanon, and the extraordinary perils of seeking to work on a newspaper in a society wracked by civil war. Mr El-Syoufi has been fully open about these experiences with doctors, and in particular with Mr Parsons, a clinical psychologist, who has reported on the psychological sequela of the accident, and who has of course noted that these prior events left the plaintiff with a marked anxiety condition before this accident.

16. The plaintiff came to Australia in 1991, and entered into an arranged marriage, which was not to last. He has, however, subsequently remarried, and he and his wife have started a family.

17. He came to settle in Canberra in about November 1992, and began English language courses at the TAFE. He undertook these courses on a full time basis for some four years, and also did some casual work as a kitchen hand and cleaner, as well as some occasional work for his brother in law. His tax returns for the years from 1992-3 were tendered in this case. He gained a certificate in intermediate English in July 1994, and an advanced certificate was awarded shortly after the accident. After his injuries settled he enrolled in a further course at Canberra Institute of Technology in electronic publishing, and he completed this at the end of 1996. He was unemployed during 1997, but in 1998 found employment with Pirie Printers as a graphic reproducer. He enjoys this work, as it is what he has trained for.

18. The doctors are agreed that he continues to suffer from some restriction of neck movement, and pain, as well as occasional migraines. He has limited his medications to anti inflammatory gels because he found that he suffered from gastro intestinal problems with tablets, and I accept that this is a consequence of the accident. He has suffered from some hypertension, but I am not satisfied that this is related to the accident. He has had an anxiety about driving, and Mr Parsons has concluded that this is related to the motor vehicle accident, although he acknowledges that the plaintiff's traumatic past meant that he was probably suffering from trauma anxiety before the present accident.

19. The major psychological impact of this accident has been in the plaintiff's ability to drive a motor vehicle. He had been learning to drive in Australia, and in fact had been set down to undertake his licence test in the week following the accident, which of course had to be cancelled. He found that he was hesitant in driving, he was referred to the Canberra Hospital Driving Rehabilitation Centre. This course was eventually successful in that the plaintiff was able to undertake his licence test successfully, but he says that he has not driven since then apart from one weekend when he and his wife rented a car. He hopes, however, to resume driving, and expects that he will in due course buy a car.

20. In assessing damages in this case I must proceed, not pursuant to the common law test which applies to accidents which occur within the Australian Capital Territory, but pursuant to the New South Wales law. John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 requires a court to apply the common law and statutory regime in force in the place of the accident, and in applying the Motor Accidents Act 1988 (NSW) it seems to me that I must be guided by the approach to the assessment of damages developed by the courts in New South Wales. I accordingly undertake the assessment of damages guided by the principles therein developed, starting with the decision of Grove J in Matthews v Dean (1990) 11MVR 455 as endorsed by a five member Court of Appeal in Roberts v White [1999] NSWCA 12 (1999) 29 MVR331.

21. In respect of general damages, or as I should say in respect of a claim under the Motor Accidents Act 1988 (NSW), damages for non economic loss, I assess the plaintiff on the basis that the motor vehicle accident caused a significant injury to his cervical spine which required surgical intervention. While the surgery has been successful, he is left with ongoing pain and restrictions which the doctors say will be permanent now, having resolved to a significant degree over the years since the accident and operation. I accept that the need to undergo surgery as an urgent procedure was traumatic for the plaintiff given his aversion to hospitals and surgical intervention dating from his experiences in Lebanon. I accept also that he has had difficulties flowing from pain relief medication over the years, which has meant that he now limits himself to an external gel, and also that this accident has had an impact on his anxiety trauma, although I find that this was a pre existing condition.

22. The Act by s 79 requires the court to assess the plaintiff's non economic loss against the most extreme case, and to then award the appropriate damages, with no award of interest, having regard to the appropriate table. As this is an accident occurring before 26 September 1995 I must assess it according to the appropriate scale. Counsel were agreed that this was not a case of minimal damages, and I am certainly satisfied that the plaintiff falls easily over the threshold requirement in s79(1B) that his injuries have resulted in a continuous impairment of not less than 6 months duration. The ranges urged upon me by counsel for the defendant were 25%-27.5%, for the plaintiff 35%-37.5%. I am not sure whether it is possible to assess on other than whole percentage figures but this need not be determined. Taking all of the evidence into account and applying what I understand to be the appropriate methodology I assess the plaintiff at 33% of the most serious case, resulting in an award of $93,720. Under the Act, no interest in awardable.

23. Out of pocket expenses were agreed in the sum of $36,326.57, of which $20,776.62 has already been paid by the defendant. I award this sum, noting that the defendant is to have credit for the amount paid. The plaintiff also claimed future out of pocket expenses particularised as a claim of $5 per week in respect of medication and $4.50 per month in respect of general practitioner visits. I am satisfied that the plaintiff will continue to require some medications, but his claim includes medications related to his hypertension, which I have not found to be accident related, and also seems to be inconsistent with the evidence that he has generally reduced medication intakes due in part to the problems he was experiencing with his stomach. He will continue to need to see his general practitioner from time to time, and there could also be some future psychological treatment. I award the sum of $4,000 in respect of future out of pocket expenses.

24. The plaintiff makes a claim for past wage loss based on a loss of $370 net per week from the period of the accident to 8 February 1998 when he obtained employment at Pirie Printers. I am not satisfied on the balance of probabilities that the plaintiff in fact had a pre accident economic capacity that sounds in damages to this extent. His evidence was that he was studying English full time before the accident, and indeed he continued with full time study until the end of 1996. While a student he did part time jobs, and he said that he fully disclosed his income in his tax returns. These show relatively small amounts of earnings from his own efforts (that is excluding social security type payments) of $4,476 in 1992-3, $2,513 in 1993-4, and only some $259 in 1994-5, although this is the year of the accident, which occurred in April. I am satisfied from the evidence that the plaintiff was in fact engaged as a full time student, and did undertake part time work, but his earnings from this source reached, at most, some $90 a week in 1992-3, and on average of the three years before the accident would not have exceeded $50 a week.

25. Although the plaintiff said that he had his name down with Jobline, and also says that he had an expectation that he might get additional work from his brother in law, it seems to me that even if he was to increase his hours during the period after the accident, it would not be to more than his 1992-3 earnings while he was still studying. It was his intention to complete his English studies and then gain a technical qualification. I accept that he was precluded from study or work in the second half of 1995, and that from the end of 1996 when he completed his study and was looking for full time work he was under a disadvantage in the open labour market in jobs such as cleaning due to his disability. His evidence was that he was looking, quite properly, for work his preferred field as a graphic reproducer, and he agreed in his evidence that he could have started work earlier than February 1998 if a job had been available. The period of claim is 147.14 weeks, and it seems to me that an award for this period at $110 a week, allowing for increased part time work and then the period until he found employment, is appropriate, leading to an award of $16,185. No interest is awardable on this sum pursuant to the Act.

26. The plaintiff has made a buffer claim in respect of future economic loss. The plaintiff impressed me as an honest witness, and as a man who has made a real effort to get on with his life in the face of considerable adversity. He has fled horrific experiences in his native land and, after a period learning English, trained himself in his preferred trade, and despite his disability has found employment which he enjoys, and on the evidence of his supervisor, is good at. This said, it is also apparent that he does have a permanent disability in relation to any heavy work, and although his employers are aware of this, and his colleagues assist him with such heavy lifting as is required, he does suffer a disadvantage on the open labour market.

27. The evidence was that the plaintiff is now earning about $13 an hour, and that persons in his trade can earn up to $18 an hour. Mr Small, his supervisor, said that because of his disability he was somewhat slower than other workers, and so would be expected to remain at the lower levels, although he conceded in cross examination that the trade was becoming more skilled with computer applications, and less dependent on physical ability, and it would follow that the plaintiff's degree of relative disadvantage might be expected over the years to decrease. It seems to me taking all of the evidence into account that this is the type of case that calls for a buffer of some substance. I am not satisfied that it would be appropriate to look to a figure derived by reference to the cumulative difference between his present and potential gross hourly rate, but I am satisfied that he faces both a barrier to advancement, and a significant restriction on the open labour market. He is fortunate to have found an employer who clearly values his skills in a field that he enjoys, but of course nothing can be seen to be permanent, and his undoubted disability would be a barrier to future work, and I note that it did take him some 12 months after qualification to obtain his present position. I must factor his age into this assessment. In respect of future economic loss I award a buffer sum, having regard to what the Federal Court said in Fry v McCufficke (1998) 1499 FCA, of $50,000.

28. A claim for damages pursuant to the principles of Griffiths v Kerkemeyer (1977) 193 CLR 161 was particularised as a claim for 35 hours a week for two periods amounting to some three weeks in April and May of 1995, then for 14 hours a week for six months from May to October 1995, and then for 2 hours a week from then into the indefinite future. This claim must be assessed pursuant to the provisions of section 72 of the Motor Accidents Act which provides:

"72(1) The objects of this section are:

(a) to limit to average weekly earnings the level of payment for services for additional domestic assistance;

(b) to restrict access to those payments to claims where the need is long term; and

(c) to exclude claims where the services provided would have been rendered as a matter of course regardless of the relevant motor accident."

29. Section 72(2) further provides that no compensation is to be awarded if the services are provided for less than 6 hours per week and for less than 6 months. In his evidence Mr El-Syoufi estimated that his wife did about 7 hours a week of work that he would otherwise have done, but he acknowledged that this included some activities that he had previously done himself before he was married but which he would expect his wife to do in any event. I am not satisfied that the plaintiff has established on the balance of probabilities that he has a need for domestic assistance that exceeds the threshold of the Act.

30. This amounts to a total award of $200,231.57. I have found that the plaintiff was negligent in agreeing to travel in a vehicle when he knew the seatbelts did not work. It seems to me that this must result in a reduction of his damages. I note that failure to wear a seatbelt was taken in Lee v Burn (1998) 27 MVR 186 to warrant a 30% reduction in damages. In this case the plaintiff did not choose not to use a functional seatbelt, but he did choose to embark on a journey knowing the seatbelt was not working. There may well be circumstances where a passenger, accepting a ride with a friend and then finding to their concern that a seatbelt does not work, would be entitled to argue that there should be a minimal finding of contributory negligence. In this case the plaintiff knowing in advance of the defect, agreed to embark on a long interstate trip notwithstanding the known fault in the seatbelt. I find that this should result in a reduction of his verdict by 20% on account of his contributory negligence.

31. This amounts to a verdict of $160,185.25 which I award, with costs.

I certify that the preceding thirty one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master T. Connolly.