HIS HONOUR: The plaintiff, Mr Matthew John Keppie of Wagga Wagga, brings an action for damages for personal injury. The tort relied upon in the statement of claim is the tort of negligence. In paragraph 3 of the statement of claim it is alleged that on 19 April 2010, the defendant drove his motor vehicle over the plaintiff, causing him severe personal injury and loss. The second particular of negligence given is "deliberately driving into the plaintiff". In essence, the plaintiff alleges the tort of trespass to the person.
On one view of it, it could be said that the evidence called by the plaintiff and the evidence called by the defendant on the question of liability is fairly evenly balanced. I have been very properly referred by learned counsel for the defendant to the decision of the High Court of Australia in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. The most crystalline judgment delivered in that case was by Sir Edward McTiernan. At 372, his Honour said this:
"English law adopts the reasonable rule that the strictness of the proof of an issue should be governed by the nature of the issue and its consequences. Lord Brougham's speech in defence of Queen Caroline describes an ascending scale of issues which illustrates this principle: 'The evidence before us,' he said, 'is inadequate even to prove a debt, impotent to deprive of a civil right, ridiculous for convicting of the pettiest offence, scandalous if brought forward to support a charge of any grave character, monstrous if to ruin the honour of an English Queen.' The law presumes against guilt of vice and immorality…A learned authority says, however, that the presumption against moral wrong-doing is not so strong as the presumption against criminal wrong-doing…The proof of the issue of adultery involves the displacement of this presumption of innocence in favour of the person charged with serious misconduct. The presumption is not to be regarded as a weak one."
His Honour went on to point out the consequences of the proof of a charge to adultery in an application for the dissolution of a marriage and the consequent loss of status following upon such a dissolution. The Court has to be satisfied of the matter alleged against the defendant where it involves, in essence, a deliberate tort and, indeed, criminal conduct.
The defendant was charged with serious criminal offences. According to exhibit W, they appear to have been the use an offensive weapon with intent to commit an indictable offence, assault occasioning actual bodily harm and assault causing grievous bodily harm to a person with intent to do so. The defendant stood trial in this Court here at Wagga Wagga before her Honour Judge Payne and a jury, but was acquitted. That acquittal, of course, does not create any form of estoppel in these proceedings.
An event occurred in the early hours of Monday 19 April 2010. A group of people had been camping on a rural property adjoining the Burra State Forest. The campsite has been described as being at Paddys Falls, a small waterfall on a small creek, which from exhibit B appears to have borne the name of Paddys River. The plaintiff had been camping there for approximately a week. He was in company with a neighbour, a lad, Mr Brenton Hawkins and a number of other persons. On the afternoon of the preceding Saturday, the defendant, in the company of his then lady friend, Ms Toni Tutty, joined the camping party. Ms Tutty was having a sexual relationship with the defendant, but was also the plaintiff's cousin. Late in the afternoon of Sunday 18 April 2010, dinner was consumed and there was then some drinking of beer. The plaintiff believed that he had consumed about eight stubbies of Toohey's full strength beer and the defendant believed that he consumed about four stubbies of full strength beer.
Towards midnight, the plaintiff and the defendant agreed to go pig hunting. They were to be accompanied by Brenton Hawkins. Pig hunting was performed by driving through the State Forest and permitting dogs to pick up the scent of wild pigs. The dogs were then set loose to track down the pigs and hold them by their ears. The plaintiff's evidence was that he would then dispatch the pigs by placing a hunting knife into their throats, causing their death. The beasts would then be prepared for butchering and once the meat had been obtained, the meat was frozen. Whether the meat was for human consumption or only for the consumption of the plaintiff's hunting dogs, is not clear from the evidence before me.The hunting was to be carried out from the defendant's motor vehicle, a Mazda Bravo dual cab registered number WPA 206. At the front of the vehicle was a bull bar to which had been fitted a winch. The plaintiff's case, in essence, is that the party went driving in the defendant's vehicle through the State Forest. The defendant was driving, the plaintiff was sitting in the front passenger seat and Brenton Hawkins was in the back seat of the dual cab. Dogs were carried in cages on the tray of this utility truck, those being three dogs that were the property of the plaintiff.
The plaintiff's evidence is that at some stage, the defendant wished to drive back to camp because of a perceived lack of fuel. The plaintiff told me that the defendant did not have sufficient fuel to get the party back to their camp in the four-wheel drive. There was then an argument, verbal at first, but then a physical altercation, as the defendant was sitting in the driver's seat and the plaintiff was sitting in the passenger seat. The vehicle came to a halt and the fight between the plaintiff and the defendant continued and they ended up in the back seat of the vehicle, wrestling. According to the plaintiff, Brenton Hawkins had been asleep, but he had woken as a result, presumably, of the fighting inside the vehicle. The plaintiff then said that he alighted from the vehicle, as did Brenton and the plaintiff announced that he was going to walk back through the forest to the campsite.
Both the plaintiff and Brenton Hawkins identified the scene of the event in four photographs taken by the police on 13 May 2011, which became exhibit A. The photographs appear to me to show an essentially flat area of forest, with a slight upward incline ahead of the vehicle. The plaintiff told me that he was standing off the two tracks worn into the trail by vehicles on the right-hand side of the defendant's vehicle. According to the photographs, the plaintiff was facing away from the vehicle. That was, in essence, his ultimate position. The plaintiff said that initially the defendant drove over his right foot, presumably the tyre of one of the vehicle's wheels went over his foot, and then the defendant reversed and then, according to the plaintiff, he was run down by the vehicle.
Brenton Hawkins gave evidence. He did not give evidence of the plaintiff's right foot being run over, but only of seeing, from a distance of some 20 metres, the defendant's driving his vehicle off the road and striking the plaintiff and knocking him to the ground and then driving over him or over a part of him, then reversing back onto the two tracks of the trail and then heading off away from both the plaintiff and him. Brenton Hawkins said that he then ran towards the vehicle, which was being driven away from him. He believed that the plaintiff had been killed. He did not stop to give assistance to the plaintiff, but ran ahead to catch up with the defendant's vehicle, which was being driven only at a very slow speed. He reached into the vehicle, turned the ignition off, extracted the keys of the defendant's vehicle from the ignition and then became involved in an altercation with the defendant, which in essence was won by Brenton Hawkins. At the time, Brenton was a lad aged 14. The defendant was aged 25 years. He was a mature man.
After overcoming the defendant, Brenton Hawkins persuaded the defendant to assist the plaintiff. Brenton said that he heard, during his scuffle with the defendant, the plaintiff call out for assistance. That must have disabused him of his belief that the plaintiff had been killed. Brenton and the defendant then went to the plaintiff's assistance and put him on the back seat of the utility and then drove to a nearby farm house, of which the plaintiff had learned earlier in his visit to this State Forest. They went to the farm house to seek assistance for the plaintiff.
The house was occupied by Mr Gordon Kelso and his wife and three children. The house, according to Mr Kelso's statement, was located on Nine Mile Road at Tumbarumba, but was accessed from Tooma Road. There had been difficulties experienced in the past with whether the address should be described as Tooma Road, Tumbarumba or Tooma Road, Burra. It is common ground that the plaintiff was taken onto the veranda of Mr Kelso's house, where he was laid on the floor. Brenton Hawkins then knocked at the door and roused Mr Kelso and he explained that assistance was required for the plaintiff, who had been injured. Mr Kelso's statement to the police contains this matter:
"4. About 4 am on Monday 19 April 2010, I was woken up by a banging noise coming from the front door of my house. I got out of bed and went to the front door and opened it and I saw a male in a slumped position on the front porch and another young male who was standing next to him. The young male told me his name was Brenton Hawkins.
5. Hawkins told me that the male lying on the porch had been hit by a log that they had been winching off a lane.
6. I saw a vehicle parked at the front of my place, which had a number [of] dogs on the back tray. I asked Hawkins who were the people in the vehicle? The vehicle then drove off very fast, leaving my property.
7. I spoke to the male lying on the porch, asking him what was wrong. The male replied that his chest was crushed and he couldn't breathe.
8. I rang 000 and informed them that I needed an ambulance. I placed a blanket over the male and didn't move him, because of his injuries."
Exhibit 1 is a transcript of the 000 call. A lot of the call was taken up with trying to identify correctly the whereabouts of Mr Kelso's house. The conversation between the operator and Mr Kelso then continues thus:
"Q15 And what's the problem, tell me exactly what's happened?
A Umm, we've got some people that have just turned up, we live in the bush and a log has fallen on this guy's chest.
Q16: Yep.
A And they've just brought him to our house.
Q17 Okay, is he there with you now?
A Yeah, he's lying on our veranda.
Q18 How old is he?
A I say late 40s.
Q19 Is he conscious?
A Just, yep.
Q20 Is he breathing?
A Yep, very, very shallow.
Q21 Okay, can I ask you some questions about his condition, I just need you to help me out, if you can?
A Yep.
Q22 How long ago did this happen?
A How long ago did this happen?"
[Master Brenton Hawkins is then heard speaking to the operator]
"Q23 Oh, about ten minutes ago.
A Ten minutes ago.
Q24 He's really finding it hard to breathe."
The questioning then recommenced by the operator. Again there was a discussion as to the extent to which the plaintiff could breathe normally and further debate about the directions to Mr Kelso's house. On page 4, a question was asked by Mr Kelso, clearly directed to Master Hawkins. Master Hawkins replied "I've just got to get these dogs back to camp." However, it is clear that Master Hawkins was asked to stay at Mr Kelso's house. Question 52 appears to have been a statement made by Brenton Hawkins. The answer to it appears to have been a recital by Mr Kelso of what Mr Hawkins said. The exchange is recorded thus:
"Q. 52 Umm, we were moving a log and it just went over the top off him.
A. They were moving a log and it went over the top of him."
It is the evidence of both Master Hawkins and Mr Kelso that the defendant drove off. As I recollect Mr Hawkins' evidence, he believed the defendant to have driven off before the 000 call was made. However, the evidence of Mr Kelso, which I have no doubt in accepting, was that the defendant drove off whilst the 000 call was being made. The defendant himself said that he participated in the 000 call, but there is no proof of that at all. The ambulance eventually arrived.
The ambulance record is this:
"33 year old male. Blunt force trauma chest/abdomen. Patient has tried to move a log with a chain on a 30 ton tree-tree was green and has acted like a slingshot into his chest. Unspecific and unclarified how much of the tree came with the chain and hit the patient's chest/abdomen. Patient has abrasion to the forehead. ? LOC [loss of consciousness]. Patient has abrasion to the right side. Patient has pain of 10/10 ↓ 8/10 ↓ 7/10 eventually with morphine. Patient has defecated with the force of the injury. Plaintiff taken to Tumbarumba Showground for transport by helicopter. Patient's 14 year old neighbour on scene left in care of the address where patient was awaiting arrival of police as patient would not be able to go in the helicopter. Saw patient's helpers approximately two hours later and said 'Police did not show'. He took him back to two males from Gundagai were also out 'pigging'. Called coordinator of SOCO Steve at 7.30 re concerns as police had not arrived after request on scene for their involvement. He was going to get police to phone on my mobile. Patient unable to be collared due to chest pain. Report to Child Protection."
The reference to the patient not being able to go on the helicopter was clearly a reference not to the patient but to Brenton Hawkins. The report to Child Protection was clearly about the welfare of Master Hawkins. The helicopter took the plaintiff to Canberra Hospital. The history recorded in the discharge summary from that hospital is this:
"Mr Keppie was transferred to our emergency department following a crushing injury whilst felling a tree."
In due course a statement was made to the police by Dr Christopher John Cole, the Emergency Medicine Registrar at the Canberra Hospital. He records that he examined the plaintiff at 9.30am on 19 April 2010. In paragraph 5 of his statement, the doctor said this:
"The history provided by the patient was somewhat unclear, with two possible sequences of events recounted by the patient and by the retrieval paramedic staff. Mr Keppie and at least one other person had been moving felled trees or logs. Whilst doing so, Mr Keppie was either struck by a log, or by a vehicle, or both, causing the injuries for which he was transported to the Canberra Hospital. My contemporaneous notes reflect that I was told that when paramedic staff arrived at the scene, there was no other adult driver present, only an approximately 14 year old boy."
The final two paragraphs, the penultimate numbered nine, and the second not numbered at all, are these:
"Based wholly or substantially on the above knowledge, I am of the opinion that Mr Keppie had sustained serious injuries, consistent with blunt trauma involving significant energy or force. While he remained haemodynamically stable throughout his entire episode of care and did not require any surgical intervention, each of his significant injuries, independently and together, have the potential to be life-threatening. Specifically, I am referring to his traumatic pneumothorax with multiple rib fractures, his skull fracture and his liver injury.
His injuries were consistent with both proposed causative mechanisms. They could equally have been caused by the impact of a heavy log, or by being struck by a moving motor vehicle. My contemporaneous notes reflect that at the time I assessed Mr Keppie, I was of the opinion that his being struck by a heavy log was the most likely cause of his injuries. This opinion was based entirely on the collateral history that Mr Keppie had been engaged in moving massive logs at the time he was injured, and the lack of confirmatory history regarding the presence of a moving motor vehicle, or driver other than Mr Keppie, at the time NSW Ambulance officers arrived at the scene. The nature and extent of his injuries did not furnish any objective evidence upon which to prefer either possible cause over the other."
Alas I cannot be assisted by medical evidence as to the likely cause of the plaintiff's injuries.
At about 2.20pm on 19 April 2010, Senior Constable Gordon Spencer of the Tumbarumba Police spoke to the plaintiff on the telephone. The plaintiff was then a patient at the Canberra Hospital. The narrative created by Senior Constable Spencer continues thus:
"He stated that he cannot really recall. He was asked, were you [run] over by a car? He stated that he did not think so. He was asked was he on a road or road related area? He stated he was not. He stated they were driving through the State Forest in the bush. He was asked whose car he was in? He stated it was [redacted] from Gundagai. He stated that he does not know any more about [redacted]. He was asked what sort of vehicle does [redacted] own. He stated that [redacted] owned a Mazda Bravo. He did not want to give any more info. Police are of the opinion that all three persons of interest were illegally hunting in the State Forest. This cannot be proven without admissions. The witness [redacted] stated that they had dogs with them, but they were not hunting. The victim states that he was not hunting. Police did not sight the vehicle of interest or any dogs. At this [stage], police will wait for the victim to come forward with further info. The victim stated that he had a couple of broken ribs, with cuts and bruises all over."
The first set of redactions clearly contained the defendant's name. The name of the redacted witness is clearly Brenton Hawkins. It can be seen therefore, that as at 2.20pm on 19 April 2010, the plaintiff was not telling the police that he had been run over by the defendant's motor vehicle. It is clear, however, that the police were concerned that the plaintiff and the defendant, together with Master Hawkins, had been illegally hunting pigs in the State Forest. Evidence was given by Mr Kelso that antecedent to 19 April 2010 police were conducting regular patrols in the State Forest near him because of a major theft from a nearby property of motor vehicles and plant and because of illegal hunting in the State Forest and some of the hunters having caused bushfires. The evidence before me suggest that if found guilty of illegal hunting in a State Forest, the illegal hunters might lose paraphernalia involved in hunting, which would clearly include things such as the plaintiff's dogs, any knives, perhaps the defendant's motor vehicle and perhaps things such as camping equipment.
The plaintiff remained in the Canberra Hospital until discharge ten days later on 29 April 2010. On 3 May 2010, the plaintiff went to see his usual general practitioner, Dr Keith of Wagga Wagga, and obtained a prescription for a painkiller. Unfortunately no history was recorded at that time by Dr Keith. On 7 May 2010, the plaintiff saw Dr Endrey-Walder, a general surgeon, at the request of his then solicitors, Messrs Farrell Lusher of Wagga Wagga. The plaintiff had not consulted that firm about what occurred on 19 April 2010. He was consulting that firm about injuries sustained by him in a motor vehicle accident on 29 September 2001, about which I shall, in due course, have more to say. Dr Endrey-Walder's report makes it clear that he was seeing the plaintiff in respect of the motor vehicle accident of 29 September 2001. Part of the history recorded by Dr Endrey-Walder is this:
"Three weeks ago he was run over by a ute 'in the bush', suffering three fractured ribs on the right side, fracture of the right clavicle and a fractured skull, for which he was hospitalised at the Canberra Hospital for 11 days for observation and nursing care."
On 12 May 2010, the plaintiff saw Associate Professor Arthur Shores, a consultant neuropsychologist, again at the request of Messrs Farrell Lusher. Again, the purpose of that consultation was to obtain evidence for an action in respect of the motor vehicle accident of 29 September 2001. Part of the history recorded by the Associate Professor is this:
"He provided a history of a subsequent head injury which he said was sustained in another motor vehicle accident on 19 April, 2010. In this accident, he said he was a pedestrian struck by a 'ute'. He said his last memory of events preceding the event was of the driver of a stationary vehicle trying to 'strangle' him in the vehicle. He said he could remember getting out of the vehicle, then recalls 'a flash of light and then lying in pain'. He said he has been told that after he got out of the vehicle, the driver of the vehicle then ran him over. He said he could recall being picked up and carried to the vehicle. He said he could then recall waiting at farm house for a helicopter to retrieve him. He said he then 'blanked out', until the next day when he found himself in the Canberra Hospital. He said he suffered with very poor memory for 11 days following the accident. He said he continues to suffer chest and rib pain, has increased asthma symptoms and bad dreams which are now 'mixed in' with his dreams of the 2001 accident. He said he's also suffered moodiness and ongoing poor memory."
Eight days later, on 20 May 2010, the plaintiff saw Dr Brian Noll, an orthopaedic surgeon, at the request of the solicitor for the insurer of the vehicle involved in the motor vehicle accident of 29 September 2001. Part of Dr Noll's history is this:
"He informs me that some three weeks ago, while camping in the bush, he had had an argument and was 'run over' by a 4WD. He was admitted to Canberra Hospital on 19 April 2010 and remained an inpatient for a period of ten days. He provided me with a hospital discharge summary from which[sic] indicated that he sustained a right rib fracture and a small apical pneumothorax. He also had a non-displaced parietal bone (skull) fracture and a right scapula fracture. On discharge, he was provided with analgesic medication, but he informs me that he's discontinued taking this as he 'does not want to become addicted'."
On 27 May 2010, the plaintiff saw a Dr Paul at Dr Keith's practice and complained of increasing neck pain, which he had been suffering for the previous eight years, clearly relating back to the event of 29 September 2001.
I do know, from the report of Dr Selwyn Smith of 14 August 2012, that the plaintiff made a statement on 24 June 2010 in which he said that he did not initially provide a truthful account of what had happened to him on 19 April 2010, because he feared what Mr Foster would do to him and to his dogs.
On 7 July 2010, the plaintiff saw Dr Aamer at Dr Keith's practice and gave him a history of having been run over by a vehicle 'three months ago' which is roughly, of course, 19 April 2010.
If the initial history given by the plaintiff or on his behalf to the ambulance officers and to the Canberra Hospital be untrue, then the plaintiff very quickly commenced giving the correct histories. The first history consistent with what the plaintiff now says, was recorded by Dr Endrey-Walder on 7 May 2010. There were then histories recorded by two other specialists shortly thereafter to the same effect. The evidence adduced by the plaintiff is that given by him, that given by Mr Brenton Hawkins, who is now an adult, and by his cousin, Ms Toni Tutty. The evidence given in the defence case is by Mr Kelso, which I have no hesitation in accepting, but it really doesn't advance the matter very far, and by the defendant himself. The two versions are completely inconsistent. In essence, the defendant used a version of events which could well be consistent with the contemporaneous histories given to Mr Kelso, to the ambulance service and initially at the Canberra Hospital and consistent with a denial of being run over, that the plaintiff made to police on the afternoon of 19 April 2010.
To a large extent, I believe that the plaintiff's evidence is largely reconstructed from that which he can remember and what he has been told by Mr Hawkins. For example, the history recorded by Associate Professor Shores tells me that the last memory of events of the plaintiff was of the driver of the vehicle clearly the defendant, trying to strangle him in the vehicle, of his getting out of the vehicle, then recalling a flash of light and lying on the ground in pain. What the professor went on to record was clearly what the plaintiff had been told by somebody who was there and that must have been Mr Hawkins.
Ms Toni Tutty was not there. She was in a tent back at the camp. Her evidence is that when the defendant, Mr Johnnie Foster returned to the camp, he woke her up as she had requested that he do and said words to this effect:
"Your cousin is a fuck head. I just run him over and he is being airlifted out of here."
The problem is that the defendant had left Mr Kelso's property whilst the 000 call was being made. How was he to know that the plaintiff would eventually be airlifted from the Tumbarumba Showground to the Canberra Hospital? It is highly unlikely, in my view, that the defendant said that the plaintiff was about to be airlifted out of the State Forest or from near the campsite. However, her evidence contains a frank admission by the defendant of his deliberately running the plaintiff over. Nevertheless, Ms Tutty did not tell anybody about this admission of gross criminality to anybody, until she told the police in May 2011, after her relationship with the defendant had ceased in December 2010. Ms Tutty also said that on 20 April 2010, she visited her cousin, the plaintiff, at the Canberra Hospital and according to Ms Tutty, the plaintiff said words to the effect:
"Your boyfriend is a fuck head. He ran me over and do not speak further to me."
In other words, Ms Tutty asked me to accept that on 20 April, the plaintiff confirmed to her what she had been told by the defendant, his being deliberately run down. Yet again she makes no disclosure of this piece of information to anybody, until May 2011. Furthermore, despite what she would have me believe, she maintained her sexual friendship with the defendant for a further eight months. One would find it difficult to continue such a relationship with somebody who deliberately caused damage to one's family member, her cousin, the plaintiff. Furthermore, one will note the similarity of language attributed both to the defendant and to the plaintiff. The person is described as either "your cousin" or "your boyfriend", then that person is declared to be a "fuck head", by the defendant and then by the plaintiff, and the words run/ran over are used in exactly the same way in each alleged utterance. I am afraid that I am unable to accept the evidence of Ms Tutty.
There remains the evidence of Mr Hawkins. Again, I haves some difficulty with it. Mr Hawkins, at the time, was only 14 years old. He would have been an impressionable lad. He clearly was fond of the plaintiff, who was living next door to him. The plaintiff appears to have been regularly visited by Mr Hawkins, who was the victim himself of either domestic violence or had his life blighted by domestic violence between his parents. At the relevant time, Mr Hawkins' parents had separated. There was clearly some friendship between the plaintiff and Mr Hawkins, that is, some partiality. As has been submitted by learned counsel for the defendant, I have some difficulty in accepting at least part of Mr Hawkins' evidence. His evidence that he assumed the plaintiff to have been killed by the defendant, initially giving him no assistance, his running after the defendant's vehicle, catching up with it, causing it to come to a stop, seizing the keys, then overcoming a 25 year old man, I found to be quite implausible. Furthermore, it is clear from the cross-examination that at committal proceedings in the Local Court at Wagga Wagga, on 10 December 2012, Mr Hawkins as he now is, made statements on oath which were untrue. However, he was not cross-examined about the evidence he gave at trial, but that is probably because no one has a transcript of the evidence at the trial. This case may have been run in a completely different fashion if such a transcript had been available. It is clear that at the current time, Mr Hawkins has an animus against the defendant. Again, one much approach such evidence with caution. However, that animus appears to be based on his belief that he saw the defendant deliberately run the plaintiff down. Had I watched someone deliberately run down someone who was a close friend of mine, I would have towards that tortfeasor a similar animus. It is common human experience.
I did not form an unfavourable impression of the defendant. However, details of how the log was being moved from the road were vague and the initial histories appear to me to be somewhat inconsistent with his evidence. It must be remembered that the first time that Mr Foster gave evidence on oath about this event, was in the witness box yesterday. He did not give an interview to the police, as was his right. No adverse inference can be drawn from that fact. He gave no evidence at the committal or at the trial. He was not required to do so. No adverse inference can be drawn from that either. However, he has had the opportunity of seeing and hearing others involved in this case previously give evidence and clearly he could recollect it, because some of his answers indicate what had happened at the trial. In other words, the defendant himself had an opportunity to confess and avoid, to tell a story that made him a 'small target'. However, there is one matter which appears to have arisen without any forethinking by him. Initially the defendant said that prior to engaging the winch of his vehicle to try to draw the tree from across the road, he had caused the plaintiff to stand clear, as is proper procedure. He said the plaintiff came back to the side of his vehicle, as I understand it on the left-hand side of the front mudguard of the car. However, when the plaintiff was struck, the plaintiff was 3 or 4 metres ahead of the car. How the plaintiff went to that position in a relatively short time, to put himself in a position of danger, the defendant himself could not explain.
There are some other factors which have weighed heavily on my mind. The first is, as was pointed out by learned counsel for the plaintiff, that the sudden departure of the defendant from Mr Kelso's property, almost immediately after the plaintiff had been placed on the veranda of the home, is indicative of there being a "split up", if one can use that expression, or a disagreement between the plaintiff and the defendant. According to the defendant's position, although there had been an argument earlier in the evening, between him and the plaintiff, they were in an amicable state, when they found the road ahead of them impeded by the fallen tree. The idea was to winch that tree off the road and the plaintiff took the cable of the winch and placed the cable around the tree, attaching the end of the cable to an earlier section of the cable and then the plaintiff walked clear and the defendant then engaged the winch. In this procedure, the plaintiff was injured. They were out pig hunting together. They were known to each other, through Toni Tutty. They were, on any view of it, two Australian males out enjoying a particular "matey" occupation, hunting, after engaging in another "matey" Australian activity, the drinking of beer. The behaviour of the defendant was not consistent with their being mates. That does speak of some ill will at the time between the plaintiff and the defendant, which could have led the defendant, in a moment of madness, to run the plaintiff down.
The other thing which weighs heavily upon my mind is this. I know, from Associate Professor Shores' report, that the plaintiff has a full IQ of 65. The plaintiff is illiterate. Not only can he not read or write, he cannot spell. He can sign his name, but signatures I have seen, indicate a very poor hand indeed. He would probably be better off making a mark. The suggestion made by learned counsel for the defendant, that the plaintiff has made up this story in order to obtain an award of damages is, in the circumstances of this case, unacceptable. As I have already mentioned, the plaintiff rapidly commenced giving what he now says is the correct version of events. There is no suggestion that he had, for example, consulted either lawyers, or indeed, "bush lawyers", about his rights resulting from the accident which he now says occurred.
Furthermore, for the plaintiff and Mr Hawkins to make allegations which were patently untrue against a person such as Mr Foster, would be completely contrary to the Australian ethos of supporting your mates and the making of allegations, which might have led to the defendant's being incarcerated for many years, would be a "dog act", to use the vernacular: it would be the height of evil and/or malice and is not the impression that I have of either the plaintiff or Brenton Hawkins. I therefore accept that around 3.30am on the morning of 19 April 2010 the defendant so drove his vehicle that he knocked the plaintiff to the ground.
It is difficult to work out exactly how the accident happened, but it appears that the plaintiff may have been knocked onto his chest/abdomen. The photographs which were posed for with the police, clearly indicated the plaintiff was facing away from the defendant's vehicle. The plaintiff's pain was experienced on his anterior body, that is on the front of his body, rather than the back and would indicate to me he's been knocked to the ground and the front of his body came in contact with the ground. I accept that the plaintiff sustained a slightly displaced fracture of the lateral aspect of the right eighth rib, a fracture of the right scapula, a non-displaced fracture of the parietal bone of the skull, without any intracranial haemorrhage, and without any brain damage, and a small apical pneumothorax. The major injury appears to have been the pneumothorax, which of course would have caused the breathing difficulties attested to it in the evidence of Mr Kelso. There was also a small haematoma in the eighth segment of the plaintiff's liver, together with extensive abrasions on the right side of the plaintiff's head, face and chest, and also right leg, according to Dr Cole's statement of 25 March 2012, although that is not mentioned in the discharge summary, and the only item in the ambulance records which might indicate a right leg problem, was pain over the patella on each side. There was certainly no evidence of any injury to the plaintiff's right foot. The plaintiff also had a psychiatric reaction to this injury. It was thought, at the hospital, the plaintiff might have sustained post-traumatic stress disorder. A psychiatrist at the hospital recommended increasing the plaintiff's doze of Avanza, to 60 milligrams at night, because of a suspicion of the existence of PTSD. The plaintiff, for many years prior to this accident, had been prescribed Avanza. No surgery was practised at the hospital. The only restriction placed on the plaintiff on discharge was that he should not go flying for four weeks, because of the previous pneumothorax.
The plaintiff's medical history is complicated by the fact that the plaintiff can be very shortly and succinctly described as accident prone. The plaintiff had profound learning difficulties as a child. His general practitioner, Dr Keith, has described the plaintiff as having specific learning difficulties since childhood, thus leading to his inability to read or write or spell. He commenced an apprenticeship as a painter and although acquiring all the practical skills of a painter, did not finish the final year of the formal education required by TAFE. Accordingly, he has not qualified himself as a tradesman painter.
The plaintiff has, since the age of 18 smoked cannabis. The most recent medical report before me, one by Dr McClure, a psychiatrist, was made on 30 August 2013. Dr McClure obtained a history that the plaintiff admitted smoking cannabis "now and then", which was eventually worked out to mean "a couple of cones" several times a week to relieve pain and to stop the plaintiff "thinking" about what had happened to him. Further, in the report at page 8, Dr McClure noted that cannabis use continued and that the plaintiff would smoke that drug several nights a week, because it helped him to "relax" and reduced his pain level when he became "stoned". The plaintiff has also, for many, many years, until relatively recently, used a fair amount of alcohol.
The plaintiff has been involved in a large number of accidents. He attended the Wagga Wagga Base Hospital on 29 June 1998. He gave a history that he was involved in a motor vehicle accident on the preceding Saturday evening, two days earlier. The plaintiff was complaining of generalised pain in his muscles, especially in his lower back and in his legs. He was prescribed anti-inflammatories and given a period of time off work. On 24 March 1999, the plaintiff attended the Wagga Wagga Base Hospital and said that on the preceding Monday night, he was wrestling with a friend and had experienced back pain, which was worse on movement. He attended the triage nurse at 2.11pm, but did not wait to be seen by the doctor, who did not become available until 3.35pm.
On 29 September 2001, the plaintiff was involved in a motor vehicle accident near Nyngan. He and two of his friends had gone pig hunting. The idea was to go pig hunting in the Macquarie Marshes. The plaintiff eventually commenced proceedings in this Court here at Wagga Wagga in proceedings numbered 5 of 2010. The statement of claim in those proceedings is before me. Paragraph 3 of the pleadings alleges:
"On 29 September 2001, at about 4pm, the said motor vehicle was being driven by the defendant west on the Old Warren Road, when about 50 kilometres east of Nyngan, the plaintiff fell from the cabin of the motor vehicle and collided with the roadside."
Some of the allegations of negligence are extremely unusual. Those include these:
"(d) Driving a motor vehicle while under the influence of alcohol.
(e) Failure to ensure the plaintiff was restrained by his seatbelt.
(f) Failure to decrease speed/halt when he became aware that the plaintiff was unrestrained by his seatbelt.
(g) Failure to pay heed to the plaintiff's numerous requests to stop, for the purpose of the plaintiff urinating.
(h) Swerving the said motor vehicle when the plaintiff was attempting to urinate out of the passenger side window.
(i) Excessive speed and failure to adjust speed to minimise danger to the plaintiff, when urinating, adjust speed and driving."
Three gentlemen in the car, the defendant and the plaintiff and another, had all been drinking beer. The plaintiff had been requesting to urinate for about one hour. He could no longer contain himself and stood up with his head out of the passenger window of the car, in order to urinate. Unsurprisingly, the urine was blown back into the cab of the vehicle which caused the driver to swerve, hence causing the plaintiff to be ejected from the vehicle.
In the statement of claim, it was alleged the plaintiff sustained a head injury, an injury to his neck, an injury to his back, an injury to his left arm, including a compound fracture of the left elbow, abrasions to the chest wall, an injury to the left foot and abrasions to both hands. The evidence also suggests the plaintiff injured his penis. Eventually, on 8 November 2011, the registrar of this Court signed consent orders awarding the plaintiff a verdict of $50,000, inclusive of costs and out-of-pocket expenses. The plaintiff told me that he recovered approximately $17,000 net.
In approximately May 2003, the plaintiff was involved in another motor vehicle accident, when he rolled his utility truck. He told Dr Keith about that motor vehicle accident on 20 October 2003. On 2 October 2005, the plaintiff attended Wagga Wagga Base Hospital and eventually a stroke was diagnosed. The plaintiff had developed a speech problem, which was diagnosed as expressive dysphasia. That required the plaintiff to undergo speech therapy. X-rays taken at that time suggest that he had not only a recent intracranial bleed, but a longstanding prior intracranial bleed and it was thought that that was caused by the plaintiff's being ejected from the vehicle on 29 September 2001.
The plaintiff was involved in yet another motor vehicle accident on 18 October 2008. He again attended the Wagga Wagga Base Hospital. There was a relatively minor injury to his right leg, but precautionary scans were made of the plaintiff's brain. On 9 November 2008, the plaintiff had an accident at home. He saw Dr Keith on the following day. The history recorded is this:
"Hit left elbow yesterday afternoon and blacked out. Hit head and loss of consciousness about one minute. Residual cystic swelling, right middle finger. Left arm weakness for four years."
On 4 April 2009, the plaintiff attended the Wagga Wagga Base Hospital and complained of having been assaulted on the previous evening at a hotel. The evidence is that he was assaulted at the Black Swan Hotel at North Wagga Wagga. The plaintiff complained of headache, nausea and an unsteady gait. The history given at that time indicated a motor vehicle accident in October 2008 as being a "high speed rollover" and that no doubt is the event of 18 October 2008. On 4 December 2009, the plaintiff had another accident at home. He slipped in the bath and hit his head and had ongoing vomiting and diarrhoea as well as chest pain and pain in his abdomen.
For many, many years before 19 April 2010, the plaintiff had been trying to obtain the disability support pension, with the assistance of Dr Keith. Initially the plaintiff relied upon his specific learning difficulties and a long history of asthma since childhood. In a certificate prepared on 24 September 2002, by Lorna Tyrrell, an occupational nurse, there is reference to the plaintiff's severe left arm injury, as a result of the motor vehicle accident of 29 September 2001 and of the plaintiff's still suffering pain, pins and needles in his left arm and weakness of the limb. The plaintiff also complained to Ms Tyrell of asthma and his specific learning difficulties. Hence one can see that by 2002, the plaintiff had added to his list of ailments, an ongoing problem caused by the motor vehicle accident of 29 September 2001. In an assessment made on 26 September 2008, included in the list of ailments was the traumatic brain injury, mainly the stroke that the plaintiff had experienced, to which I have already made reference. In a certificate of 1 May 2009, Dr Keith added the condition of depression as being the first diagnosis warranting the grant of disability support pension. On 26 May 2009, nine months before the event with which I'm concerned, the plaintiff had a job capacity assessment carried out by somebody from the Wagga Wagga Centrelink office. Inter alia, the plaintiff told that examiner that he had done some "pig chasing" after the motor vehicle accident of 29 September 2001, but had found that far too demanding and had to give it up. However, the plaintiff was able to return to it some 11 months later!
40 On 31 January 2010, the plaintiff was presented to the Wagga Wagga Base Hospital. The diagnosis that was offered was alcohol intoxication. A note made by the resident medical officer in the emergency department is this:
"Thank you for seeing Matthew, a 33 year old who presented tonight intoxicated and claiming to have been a passenger on a motorbike, when it crashed. He was picked up by the police and then brought in by ambulance, complaining of pain in various body parts. Matthew was non compliant with spinal precautions. On examination, he complained of some tenderness of the flanks and had multiple grazes of his limbs. CT head and neck was performed and no abnormality was detected. Chest X-ray and pelvis X-ray also revealed no abnormality."
The plaintiff has had only had intermittent, if any, employment since the motor vehicle accident of 29 September 2001. The plaintiff told Dr Endrey-Walder on 7 May 2010 that he had not had any remunerative work since the accident of 29 September 2001. Dr Endrey-Walder said this:
"I believe that his lack of work activity over the last nine years is more a function of his psycho-social condition, than the physical debility residual from the accident."
On the plaintiff's need for care, on 7 May 2010, Dr Endrey-Walder said this:
"I understand, from his friend, that she is basically looking after his household and his domestic needs. I can see no reason as to why this man could not do his own shopping, cleaning, cooking."
As I have earlier mentioned on 12 May 2010, the plaintiff saw Associate Professor Shores. The plaintiff told Professor Shores that he had not worked since the stroke of 2 October 2005. He also told Professor Shores that he used to enjoy pig hunting, but stopped that after the accident in 2001. He also said that he'd stopped socialising after the accident in 2001. After assessing the plaintiff's IQ as being 65, the doctor said that he was not able to comment on whether the plaintiff's IQ had been decreased by the head injury of 29 September 2001, unless he had access to the records of the Department of Education, which would have been kept when the plaintiff was placed in an IM class. Professor Shores said this:
"Mr Keppie has a history of having suffered what appear to have been a number of insults to his brain over his lifespan, beginning most likely from or before his birth. His history that he was placed in an IM class at school, is suggestive of an intellectual disability/mild mental retardation and this indicates a problem with the development and growth of his brain. His current level of intelligence is in the range of mild mental retardation and without access to his Confidential Pupil Record from the Department of School Education, which is likely to contain his actual IQ when he's place in an IM class, it is not possible to know if the current IQ is a significant decrement or not. From the history he provided and the medical records reviewed, it appears that he has likely suffered at least 6 acute insults to his brain, in addition to the index injury [29 September 2001]…These insults to the brain include a cerebrovascular event in 2005, a motor vehicle accident in 2008, a fall in 2008, an assault in 2009, a fall in 2009, and another motor vehicle accident in 2010. His history of drug and alcohol abuse are further risk factors for neurophysiological impairment which need to be considered."
A further complicating factor, according to the Associate Professor, was the plaintiff's apparent lack of effort on memory testing, which rendered the interpretation of the assessment "unreliable". The Professor could not rule out exaggeration of the level of the plaintiff's impairment, in other words, the distinct possibility of malingering.
The plaintiff was seen by Dr Noll on 20 May 2010. Again, the plaintiff told Dr Noll that he had not been able to undertake any paid work since 29 September 2001. He referred to having been on Newstart Allowance for the previous six years and of his inability to find any suitable work. On the question of care, the plaintiff told the doctor that a lady friend, who worked as a cleaner, helped him with his household chores. The only person that is so identified to me is Ms Toni Tutty. The plaintiff, however, told Dr Noll that he would be able to manage the housework independently of her assistance, if so required. The plaintiff went on to tell the doctor, however, that he had difficulty hanging clothes on the clothesline, because that caused a problem with his neck. The plaintiff alleged an injury to his neck in the motor vehicle accident on 29 September 2001. I have carefully read Dr Noll's report. It appears to me that he could not find anything physically wrong with the plaintiff at that time.
Eventually the plaintiff was awarded a disability support pension on 6 October 2011. Exhibit 8 are certain records from Centrelink. They indicate that the plaintiff was on receipt of the Newstart benefits from at least 19 April 2007. During the whole of the period of time, the plaintiff has been in receipt of benefits from the Department of Social Security, he has only ever declared one piece of income. That income was the sum of $80 paid to him by a firm of painters on 25 November 2010, i.e., after the accident with which I am now dealing.
45 In essence, the plaintiff's complaints now are much the same as they were before the event of 19 April 2010, but they are expressed a little more robustly. The only objective thing that can be said about the medical evidence obtained for the purpose of the present litigation is that there may be an addition to the extent of the plaintiff's depressive illness. For example, prior to the accident now in question, the plaintiff was on a lower dose of Avanza than 60 milligrams nocte, that he is now on, although in the distant past it had been at the same level.
The plaintiff claims and is supported in this claim by Dr Endrey-Walder, who has seen him for a second time, in connection with the current case, that he has the additional problem now of low back pain, which he never had in the past and Dr Endrey-Walder has diagnosed a discal problem at the L4-5 level. At the top of page 7 of his report of 12 March 2013, Dr Endrey-Walder said this:
"While his chronic, long term neck symptoms were clearly aggravated by the accident, it is his lower back condition that has been the most persistent and debilitating.
It is noteworthy that there is no past history in his doctor's clinical notes of any lower back related symptoms and that he complained of no lower back pain to me when I assessed him for the MVA of September 2001.
Furthermore, the CT scan report of three months ago highlights only single level disc damage. That is, a left-sided foraminal disc extrusion at the L4-5 level (I did not see the films, only the report) which was thought to impact on the left L4 nerve root, the L5 and S1 nerve roots remaining clear."
For the plaintiff's low back condition, the doctor thought the plaintiff had a WPI of 5%. The problem with that opinion is that the doctor did not correctly read the GP's records. I have pointed out the plaintiff's complaints of low back pain, recorded by records from the Wagga Wagga Base Hospital on 29 June 1998 and 24 March 1999. Back pain was reported by Dr Keith on 24 September 2008, after the plaintiff's relationship of three years with a lady broke-up two weeks previously, causing the plaintiff to "stress out". The plaintiff also complained to Dr Gupta at Dr Keith's practice of backache on 8 December 2009, less than six months before the event now in question, and Dr Gupta noted that the plaintiff had been to the emergency department of the local hospital for backache and had been prescribed a painkiller for backache, namely Codalgin Forte. Furthermore, there is no mention in the discharge summary from the Canberra Hospital of back pain. There were numerous radiological investigations, but they were confined to the chest, the pelvis, the brain, the cervical spine and the abdomen; none of the low back. I am afraid that the plaintiff has probably had intermittent low back pain on a number of occasions over many years.
The plaintiff has not crossed the threshold to obtain an award of damages for non-economic loss. The plaintiff's past out-of-pocket expenses have been agreed to amount to $1,396.35. The plaintiff claims a sum of $8,557 for future out-of-pocket expenses, being allowance of $10 a week for 33 years, when the plaintiff will attain the age of 70. The plaintiff was on Avanza and is still on Avanza. Only the amount of that drug he takes has increased. Whether that remains the case for the future, I do not know. Bearing in mind the finding of Dr McClure of an exacerbation of the plaintiff's depressive illness, I can accept that there might be some future need for increased psychiatric medication or psychiatric care, but not a great deal. Doing the best I can, I allow a cushion of $1,000 for future out-of-pocket expenses.
The plaintiff claims for past and future loss of earning capacity the sum of $20,000. The plaintiff was, in essence, outside the normal workforce prior to this motor vehicle accident. To say that he was on the periphery of the workforce at the time would, in my view, be exaggerating. The plaintiff worked from time to time and generally in the cash economy. There is evidence of the plaintiff, for example, working after the event now in question, when he received the sum of $80 from a firm of painters. That has been disclosed to the Department of Social Security. There is also, in the records of the plaintiff's general practitioner, on 9 September 2010 a note that the plaintiff was "back at painting work". The plaintiff attended Dr Keith's surgery on 29 September 2011 to have a dressing changed. The notes of this consultation are:
"Has wound to the left index finger, which was sustained whilst holding a star post, whilst his friend tried to hit it into the ground with a piece of metal pipe - split the end of finger and fingernail missing - was seen at Wagga Wagga Base Hospital emergency department on Tuesday evening."
This would indicate the plaintiff was involving himself with the driving of a star picket, perhaps doing a bit of fencing to help a friend. The sum claimed for past and future economic loss is, in my view, far too great. However, I believe some allowance should be made. The plaintiff was clearly totally incapacity whilst he was in the Canberra Hospital and no doubt would have still had some ongoing pains for some stage after the event now in question. The plaintiff's earning capacity may also have been affected by the exacerbation or aggravation of his depressive illness. Doing the best I can, I allow a cushion for past and future economic loss of $5,000.
The plaintiff's further claim is for future paid domestic assistance, one and a half hours per week, at $30 per hour to the age to 70. The lump sum claim is $25,671. The problem with that is that in essence, what is now claimed was much the same as what was claimed in respect of the motor vehicle accident of 29 September 2001. I have already remarked upon the observations made by the doctors in May 2010 as to that claim. The plaintiff admitted that he could care for himself, if he were motivated to do so and his motivation can be improved by taking appropriate medication. In any event, he has been assisted in housework by his cousin, Ms Toni Tutty, who works as a cleaner and she helps the plaintiff clean his house. She also reminds him from time to time that it is necessary for him to shower or wash or bathe, because sometimes the plaintiff forgets to do so, or is not motivated to do so. There is no evidence that she will not continue to render such assistance to the plaintiff.
In Miller v Galderisi [2009] NSWCA 353, Delaney DCJ entered a verdict in favour of a plaintiff for $152,403.11. That was reduced, on appeal, to $9,111.11. The Court, Allsop P and Basten and Macfarlan JJA delivered a joint judgment. Their Honours set aside the award made for paid domestic assistance. Commencing at [15] their Honours said this:
"15. The evidence indicated that such domestic assistance as the respondent needed was being provided at the date of trial by his wife, and to a limited extent by his adult son who lived with him. The appellant pointed out, correctly, that there was no evidence that this gratuitous assistance would cease at some time in the future.
16. In our view, the award made by his Honour cannot be justified. It was made upon the assumption that the respondent required commercial domestic assistance immediately and would continue to do so for the rest of his life. However, it is clear that he did not require it immediately because it was being provided gratuitously, though to the extent that it could be attributed to the accident, not at a level of intensity that permitted recovery from the appellant.
17. As the assessment made by the primary judge cannot be justified, it is necessary for this Court to make an assessment.
18. There is no reason in principle why, if the evidence justifies it, damages may not be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases."
Their Honours went on to discuss Nominal Defendant v Lane [2004] NSWCA 405 and continued thus:
"19. The evidence accepted by the primary judge at the additional domestic assistance required as a result of the accident, assessed at four hours per week, was, since the accident and at the time of trial, being provided by the respondent's wife, with limited assistance from his son. Whether that assistance would continue to be provided by them on a gratuitous basis was a factor which the primary judge was entitled to take into account. If the circumstance were to change in the future, domestic assistance would, foreseeably, be required from a commercial provider. However, that expense was neither immediate nor inevitable. No doubt the likelihood of the contingency would increase with time, but other factors would have a contrary tendency."
Their Honours then identified four relevant variables. The fact was the plaintiff in that case was in poor health and it was unlikely that he would live to the age of 85, because of having had a stroke and two heart attacks. There was also a possibility that the plaintiff in that case would experience further ill health, which could overwhelm the needs created by the accident. Furthermore, mere age makes the need for such assistance greater, even without ill health. Furthermore, in that case, the plaintiff's wife was ten years younger than the plaintiff and there was no evidence to suggest she could not continue to give assistance to her husband.
Here, there is no evidence that Ms Tutty will not continue to provide assistance to the plaintiff. She currently is working in Wagga Wagga as a cleaner. She is much younger than the plaintiff. Furthermore, there is nothing to suggest that the plaintiff will not experience further health problems or get himself involved in further accidents. Such is highly likely, bearing in mind the history which I have recorded. I am not persuaded on the balance of probabilities that there is a need for future paid domestic assistance on the evidence before me. The total sum of the damages which appear to me to be appropriate is the sum of $7,396.36.
Does anyone want any further reasons for judgment?
FOORD: No, your Honour.
RYAN: No, your Honour.
HIS HONOUR: For those reasons, I give verdict and judgment for the plaintiff against the defendant for $7,396.36.
[2]
[Counsel addressed the question of costs]
HIS HONOUR: The defendant argues against the principle that costs should follow the event because the plaintiff has recovered a very small amount of damages. Objectively, that is so, but even a small amount of damages might be a solace to a person in the position of the current plaintiff. However, the real contest here was not about quantum. The real contest here was about liability. To think that a case of the current nature could be litigated properly in the Local Court is, with great respect to those who sit in the Local Court, highly unlikely. The defendant himself had been committed for trial by the Local Court and eventually was to stand for trial before a judge and a jury of 12. His case, on the question of liability and damages, had to be properly heard and in my view, it was proper in the circumstances for his case and the case brought against him by the plaintiff to be heard in an appropriate forum where the usual rules of practice and procedure, and evidence apply, where there is a tribunal of fact which regularly hears claims of a current nature, that is an action for damages for personal injury. Very few of such actions are ever heard in the Local Court. In my view, the plaintiff was entitled to commence these proceedings in this Court in order to vindicate his rights, which rights in essence have been vindicated, the major contest being about liability. In my view, the plaintiff should get his costs. Pursuant to UCPR 42.35, I order the defendant pay the plaintiff's costs.
[3]
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Decision last updated: 30 June 2016