Plaintiff v Defendant

1 Mr Bill Kigetzis, the plaintiff, is aged 36 years. On 6 August 2002, the plaintiff was walking across a pedestrian crossing at the intersection of Smith Street and Johnson Street, Collingwood, when he was struck by a vehicle driven by Mr Joel Roche, the defendant (the 'Incident'). The plaintiff sustained severe injury as a result of the Incident. He claims his injury and loss was caused by the negligent driving of the defendant. The defendant counterclaims that, if he is found to be negligent, the plaintiff contributed to the cause of the Incident by his own negligence as a pedestrian.

2 The issue of liability is strongly contested. The defendant alleges the plaintiff walked across the intersection against a red light and that, in the circumstances, he could not have avoided the Incident. The plaintiff maintains the defendant was negligent by entering the intersection at a speed where he could not stop in an emergency, passing on the left hand side of two vehicles, a bus and a sedan motor vehicle, which were stationary at the intersection even though the lights facing those vehicles were green. The plaintiff contends that a reasonable driver in the defendant's position would not have entered the intersection in such a manner, that the defendant's negligence was a cause of the Incident.

3 It was, of course, not disputed on behalf of the defendant that as a driver on the roadway he owed a duty of care to other road users.

4 The content of the duty of care of a driver was referred to in Manley v Alexander ('Manley'):

[T]he reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.[1]

5 The standard invoked is the standard of the 'reasonable driver'.[2] Windeyer J, in Teubner v Humble, explained the content of the duty of taking reasonable care as follows:

I know of no relevant rule of law except that a man driving a motor car must act as a reasonable and prudent man driving a motor car would act in the circumstances: and a pedestrian must act as would a reasonable and prudent pedestrian in the circumstances.[3]

6 The secondary consideration for the Court is whether the duty of care has been breached. Whether a duty of care has been breached in any particular case is a question of fact. It is a matter for determination in consideration of the facts within the parameters of the duty. The nature and scope of the duty is informed by consideration of all of the presenting circumstances. In the context of the driving of a motor vehicle, a failure to do certain things, such as keep a proper lookout or sound a warning, may constitute a breach of the duty to take reasonable care.[4] The standard demanded of the duty, however, is dependent upon the facts and what is reasonable in the circumstances. Two questions therefore arise: whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class or persons including the plaintiff and, if so, what a reasonable man would do by way of response to the risk.[5] Mason J, in Wyong Shire Council v Shirt ('Shirt'), detailed how the Court should evaluate the response to the risk:

The perception of the reasonable man's response calls for consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with any expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position.[6]

Essentially, the Court's task is to make a value judgment balancing the totality of the circumstances.[7]

7 Mr J. Ruskin QC, senior counsel for the defendant, submitted that care needed to be exercised in the manner in which previous cases are relied upon to support a breach of duty. I agree. Issues concerning breach of duty and contributory negligence are matters to be decided on the facts of this case, not by factually analogous cases. Each case will turn on its own particular facts.[8]

8 It was not contested the Incident occurred at about 9.30pm. The intersection is well lit. The road conditions were dry. Johnson Street runs east-west and Smith Street runs north-south.

9 For traffic travelling east in Johnson Street at the intersection of Smith Street, there is a right turn lane and two lanes for traffic to travel east. There are two lanes for traffic travelling west in Johnson Street.

10 The defendant's driving leading up to the collision with the plaintiff can be summarised as follows:

(a) the defendant initially travelled in an easterly direction along Johnson Street in the right hand lane closest to the centre of the road;[9]

(b) he indicated to change from the right lane to the left lane and did so.[10] At this time, he was travelling at 50 to 60 kilometres per hour;[11]

(c) because, at the intersection of Johnson Street and Smith Street, there was a red light facing him, he slowed down and prepared the car to stop at the red light.[12] He slowed down to 15 to 20 kilometres per hour;[13]

(d) he observed a bus in the right hand lane of Johnson Street which was stationary at the red light;[14]

(e) as he approached the intersection, the lights facing him turned from red to green and he accelerated into the intersection.[15] His speed increased to 30 to 40 kilometres per hour;[16]

(f) after the lights turned to green, he observed the bus remain stationary at the intersection;[17]

(g) he estimated the bus was stationary at the intersection before the Incident for five seconds.[18] He stated the bus, stationary at the intersection, blocked his vision of the pedestrian crossing.[19] He described his vision of the intersection as he drove past the bus as 'sort of straight ahead vision really';[20]

(i) he said the Incident happened almost instantaneously with the sighting of the plaintiff walking across the intersection;[21]

(j) as to why the bus in the right hand lane remained stationary, the defendant stated: 'We can keep assuming why he [the bus] might have been waiting[22] ...we could think up a hundred possibilities for why he was slow to get going';[23]

(k) in cross-examination, the defendant agreed he entered the intersection without slowing down or even putting his foot near the brake so that he could check the part of the intersection which was blocked by the bus.[24]

11 The defendant called the driver of the vehicle which was stationary behind the bus at the intersection, Mrs S.M. Andrews, and her sister, a passenger in that vehicle, Ms B.V. Chalmer. Ms Chalmer stated that after the light facing their vehicle had turned to green, she observed a pedestrian (the plaintiff) walk onto the pedestrian crossing from the south-west corner. The plaintiff walked briskly and directly across the pedestrian crossing; he seemed agitated 'and he just wasn't looking'.[25] She observed a car (the defendant) in the left lane and commented to her sister that, 'I think someone's going to be hit'.[26]

12 Both Mrs Andrews[27] and Ms Chalmer[28] believed from their observations that the defendant was travelling at a safe or moderate speed in the circumstances.

13 In her evidence-in-chief, Ms Chalmer stated the bus remained stationary for 'probably about three seconds' after the lights turned to green.[29] However, in cross-examination, Ms Chalmer agreed that somewhere between three and eight seconds elapsed from the time the plaintiff commenced to cross the intersection to the time of the Incident.[30]

14 On the night of, but prior to, the Incident, the plaintiff drove his car to Kew to pick up a female acquaintance before heading to Collingwood for the purpose of obtaining heroin.[31] He parked his car in Smith Street on the northern side of the intersection with Johnson Street. The plaintiff crossed Johnson Street at the pedestrian crossing, walking in a southerly direction to a hotel on the south-west corner of the intersection to purchase cigarettes and water. The female went to a needle exchange in Smith Street to obtain syringes.[32]

15 The plaintiff stated that he recalled purchasing the items in the hotel, and whilst inside the hotel or at the door of the hotel, he saw 'the green man' on the pedestrian crossing facing him and then attempted to cross the road. He stated that, 'once I'd seen the green man I went for the lights and I didn't basically look up again'.[33] The plaintiff also stated that he recalled seeing a bus stationary in the middle of the road.[34]

16 In closing submissions, Mr J.P. Brett, leading counsel for the plaintiff, accepted the weight of the evidence suggested the plaintiff crossed the road against a red light.[35]

17 The question of breach in this case concerns whether the driving of the defendant was negligent, notwithstanding the defendant was facing a green light at the intersection, by passing on the left hand side of stationary vehicles (bus and car) and accelerating into the intersection when his view of the intersection to his right, in particular the pedestrian crossing, was blocked because of the presence of the bus?

18 The defendant stated that the bus was stationary for a period of five seconds whilst facing the green light. In submissions, Mr Ruskin urged me to find that the bus was stationary 'for only a few seconds' and relied upon the evidence of Ms Andrews that the lights were green for only a second.[36] In my view, it is likely the lights were green prior to the Incident for at least the five seconds the defendant referred to in his evidence, and more likely close to eight seconds.[37]

19 Such a finding is supported by the evidence of Mr M.J. Chellini, manager of Signal Design with VicRoads, who provided evidence of the signal sequence of lights at the intersection of Johnson and Smith Streets on the date of the Incident.

20 Mr Chellini stated that the 'green man light' facing the plaintiff at the pedestrian crossing remained green for eight seconds. The eight seconds was calculated to permit the average pedestrian to reach half way across the intersection before changing to a flashing red light.[38] At the time of the Incident, the plaintiff was further than half way across the intersection. As stated above, he was described by Ms Chalmer as walking briskly. On this evidence, it is likely the lights would have been green to traffic travelling east on Johnson Street, the direction the defendant's vehicle was travelling, for close to eight seconds prior to the Incident.

21 In my opinion, the defendant was negligent in the manner he approached and entered the intersection prior to the Incident, and this negligence was a cause of the Incident. A stationary bus and car[39] in the right hand lane of Johnson Street facing a green light should have put the defendant on notice that caution was required upon entering the intersection. It is likely the bus was stationary at the green light for close to eight seconds prior to the Incident. This time, combined with the defendant's lack of vision of the pedestrian crossing as a consequence of the presence of the stationary bus, are circumstances that demanded caution on the part of the defendant as he drove into the intersection. Accepting the words of the High Court in Manley, the defendant was required to enter this intersection at a speed and with control to enable him to drive in such a way that he would have been aware of what is happening in the vicinity of his vehicle and be able to take reasonable steps to react to those events.

22 The defendant in fact accelerated past the stationary vehicles on his right hand side, he entered the intersection at a speed of 30 to 40 kilometres per hour at a time when his ability to observe what was occurring within the intersection was limited to 'straight ahead'.[40] The defendant did not slow down, he did not have his foot near the brake to slow down, nor did he stop to check the intersection. This is not the driving of a reasonably prudent driver.

23 I have regard to the conduct of the plaintiff. He has blindly set off to cross the intersection against a red light, seemingly uncaring of the consequences and, as discussed below, the plaintiff bears a very significant responsibility for the occurrence of the Incident. Yet the stationary vehicles on the roadway, in my opinion, should have put the defendant on notice of a potential incident at the intersection, including the unpredictable behaviour of a pedestrian at the intersection.

24 The circumstances required defensive driving on the part of the defendant. The defendant should have entered the intersection at a very low speed and with a foot at the brake, which would have enabled him to stop immediately at the point of entry to the intersection.

25 In weighing the Shirt calculus in addition to the matters referred to above, I have regard to the injury that a motor vehicle may cause to a pedestrian. A motor vehicle is capable of causing devastating injury. This is a matter, in the circumstances presented to the defendant as he approached the intersection, that he should have borne in mind.

26 I reject the submission made on behalf of the defendant that the probability of the Incident eventuating 'was so very low as to be almost a theoretical risk'.[41] As I understand the submission, it is put that the low risk in some way justified the manner of the defendant's approach to the intersection, accelerating past stationary vehicles. The risk was real and the potential consequences of an incident, a significant incident if travelling at 30 to 40 kilometres per hour, were not merely theoretical and were required to be taken into account by the defendant by ensuring that he could stop at the point of entry to the intersection.

27 I do not consider in the circumstances of this case that being in a position to stop the car, if necessary, required an overly cautious approach from the defendant when entering the intersection. In my opinion, the ability to be able to stop prior to, or upon, entering the intersection was what was required of a reasonably prudent driver in the presenting circumstances.

28 Whilst the Incident occurred almost instantaneously with the defendant entering the intersection, the lack of time for the defendant to take avoiding action has much to do with his speed of 30 to 40 kilometres per hour. In my opinion, if the defendant had been driving in the reasonably prudent manner described above the Incident would have likely been avoided. Further, the defendant's motor vehicle would not have collided 'centre front' with the plaintiff's person;[42] there would likely have been no collision at all.

29 The plaintiff must bear the primary responsibility for the Incident. The plaintiff failed to take care for his own safety. The evidence demonstrates the plaintiff entered the intersection against a red light, and did not check the lights, or for traffic, immediately prior to crossing the intersection. He had no regard to his own safety or to that of other road users. Ms Chalmer described the plaintiff as appearing agitated, and not looking at his surroundings.

30 The plaintiff recalled walking in front of the bus,[43] and after doing so, did not stop or check if any cars were approaching the intersection in the left hand lane of Johnson Street.[44]

31 The conduct of the plaintiff was in breach of rule 231(2) of the Road Safety Road Rules 2009 (Vic) ('Road Rules'). Rule 231(2) of the Road Rules state a pedestrian 'must not start to cross' at a pedestrian crossing if the pedestrian lights are red.

32 Section 26(1)(b) of the Wrongs Act 1958 (Vic) provides that damages recoverable in circumstances of contributory negligence '... must be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage'. In Podrebersek v Australian Iron and Steel Pty Ltd, the High Court stated in relation to apportionment in cases of contributory negligence:

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man and of the relative importance of the parties in causing damage: it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance. [45]

33 In my opinion, the plaintiff's conduct amounts to a reckless departure from the reasonable care to be expected of a pedestrian at an intersection of two major roads. His failure to comply with fundamental obligations of a reasonable pedestrian has, in my opinion, been the major cause of the Incident.

34 I have determined the defendant was negligent; but in evaluating the defendant's respective share of responsibility for the Incident, I consider evidence that the defendant entered the intersection legally, with a green light and at a permitted speed are important factors in a comparative examination of the responsibility of plaintiff and defendant.

35 I consider it just and equitable to reduce the plaintiff's damages by 60% having regard to his share of the responsibility for the Incident.

36 The plaintiff was born on 22 July 1978. He completed VCE in 1996.[46] His VCE results were poor. He subsequently went on to study business computing at RMIT for one year but failed to complete these studies.

37 The plaintiff obtained employment at the Prince of Wales Hotel, St Kilda, as a car park attendant - the exact date the plaintiff commenced working at the hotel is uncertain. The plaintiff's then supervisor, Ms L.M. Brown, gave evidence that she believed the plaintiff commenced at the hotel in 1997.[47] The plaintiff's tax return for the financial period 1 July 1999 and 30 June 2000 demonstrates that he ceased employment at the Prince of Wales Hotel in the latter half of 1999.[48] The plaintiff then obtained employment at Adecco Industrial ('Adecco') from October 1999 to February 2000, and Andrew Engineering from September 2000 to May 2001.[49]

38 At a time that is unclear on the evidence, after leaving Andrew Engineering, the plaintiff was provided with $60,000 from his grandfather,[50] which he invested in a block of land at St Leonards. The plaintiff relocated an old house to the land, renovated it and sold the property at a profit. After this success, he bought other property in the St Leonards area with the aim of adding value and re-selling the property at profit. The Incident meant this property had to be subsequently sold.

39 The plaintiff stated he wanted to become an owner/builder and, in order to obtain experience in building, he commenced a bricklayer's apprenticeship with Top of the Town Bricklaying and Paving ('Top of the Town') from July 2002, one month before the Incident.[51]

40 The plaintiff disclosed in evidence he had been a long time user of illicit drugs and that he suffered from drug dependency issues. The plaintiff used drugs whilst at secondary school - marijuana, ecstasy, cocaine and 'after a while' he tried heroin.[52] He stated in evidence-in-chief that his drug use had not interfered with his work.[53] In 2001, he attended a clinic run by a Dr Strecker for his drug addiction and was put on a program of buprenorphine, an opioid used in heroin replacement therapy, which he was taking at the time of the Incident.[54]

41 The history taken at his first attendance at Dr Strecker's clinic on 7 December 2001 records: 'On heroin four years and addiction for six months. Wants to quit'.[55] Attendance histories at this clinic indicate from the date of first attendance to the month of the Incident, the plaintiff was struggling to overcome his heroin addiction, there were periods of abstinence and use of buprenorphine followed by relapse to heroin use. The plaintiff, in cross-examination, denied he had been addicted to heroin for four years prior to 7 December 2001.[56]

42 The plaintiff stated he had worked at Top of the Town on the day of the Incident - 'I've been told I was so I am pretty sure I was working that day'.[57] The plaintiff also stated if he was working he would not have used heroin during the course of the day.[58] The history taken by ambulance personnel attending at the scene of the Incident records: 'Pt stated had heroin at midday & is due for bupa-morphine'.[59] Further, the notes on admission to St Vincent's Hospital after the Incident record: 'Day before yesterday - used heroin - IV'.[60]

43 The plaintiff continued to use heroin after the Incident. For a time, he continued to be treated for his addiction at Dr Strecker's clinic. These clinical notes cease in June 2003. The plaintiff stated in evidence that he has been under the care of a general practitioner's clinic at St Leonards for his addiction since 2003. He stated after the Incident his mental condition declined, he was treated with antidepressants in 2004 and 2005, and he again went on the buprenorphine program.[61] The plaintiff stated in evidence that after two or three years he overcame his addiction and weaned himself off buprenorphine, but the pain became so bad that his general practitioner put him back on the program for the pain.[62]

44 The plaintiff also stated in evidence that it was the decline in his mental condition which caused him to start using heroin again. He said this use lasted between two to four years.[63]

45 The plaintiff's evidence concerning his use of illicit drugs since the Incident is sparse and, at times, contradictory. His current general practitioner, Dr Warner, reported that his consultations with the plaintiff (since October 2008) have been predominantly for the purpose of continuing his opiate substitution program.[64] Later in this report, Dr Warner referred to buprenorphine as an opiate substitute for his addiction that has doubled as analgesia.

46 In his report of 28 March 2014,[65] Dr Warner stated that on 29 January 2014, he discussed with the plaintiff whether or not the plaintiff was ready to reduce his buprenorphine opiate substitution dosage, but the plaintiff said he was not ready to do so.

47 The plaintiff continues to use marijuana daily.[66]

48 During the course of submissions, Mr Brett referred to the plaintiff's drug addiction in the following terms: 'We know you do generally grow out of these things',[67] that he was well on the way to recovering from his drug addiction at the time of the Incident (this submission relied on the evidence of Mr Cantanese, his employer for one month at Top of the Town),[68] and that his more serious heroin addiction after the Incident occurred because of the psychological and physical state he was in.[69]

49 When I questioned Mr Brett about these submissions, he agreed that there was no treating medical opinion to support the propositions. He contended the 'story spoke for itself'.[70] Mr Brett submitted at the time of the happening of the Incident, the plaintiff was doing well, his employer liked him, but the Incident caused a mental breakdown 'and then he spirals into heroin use, and that's apparent from his convictions and the trouble he went through, and then he pretty much pulls himself out of it'.[71]

50 I am not satisfied the plaintiff was doing well in regard to his drug addiction at the time of the Incident or that at any stage he has 'pulled himself out of it'. The plaintiff, on his own evidence, was on his way to purchase heroin at the time of the Incident. The history of his heroin use demonstrates substantial problems in addressing addiction. His continuing use of buprenorphine and marijuana is, on the evidence, more consistent with a continuing addiction than it is with exacerbation by the plaintiff's injuries. As I stated to Mr Brett, some cogent expert evidence concerning the nature of the plaintiff's addiction and continuing use of buprenorphine would have been of considerable assistance in determining important issues associated with the use of illicit drugs, and the continuing impact of their use on the plaintiff's life in general and more particularly his recovery from his injuries caused by the Incident.

The plaintiff's injuries - pain and suffering damages

51 There is no dispute as to the nature of the injuries sustained by the plaintiff. For the purposes of assessing the plaintiff's pain and suffering damages, however, I will briefly detail the injuries.

52 The plaintiff had a previous motor vehicle accident at age 22, involving his car and another car that failed to stop at a red light. Dr A. Singh, the plaintiff's treating psychiatrist, in his report of 14 September 2006, detailed that the plaintiff did not sustain any significant physical injuries from this previous accident, but that he had some psychological issues for a brief time. These psychological issues were resolved at the time of the Incident.[72]

53 As a consequence of the Incident, the plaintiff suffered a left shoulder fracture/anterior dislocation and sustained injuries to the left knee, being a left tibial plateau fracture, left medial collateral ligament rupture and a left anterior cruciate ligament rupture.[73] The injury to the plaintiff's left shoulder did not require surgery. A series of operations to repair the injuries to the plaintiff's left knee were performed on 7, 9 August, 4 October and 16 December 2002. The plaintiff now wears a 'bulky' knee brace as a result of these procedures. The medical records of St Vincent's Hospital indicated that, as at 22 April 2013, the plaintiff has had no further attendance concerning this matter at the Hospital.[74]

54 The medical evidence demonstrates the plaintiff continues to report ongoing pain and stiffness in his left shoulder and ongoing pain and instability in his left knee, and also, more recently, pain in his right hip, which may be associated with weight bearing on the right side to reduce the pressure on his left knee.[75] Dr Warner observed in his report of 8 September 2013 that the plaintiff's condition in respect of his physical injuries had to some extent stabilised and that the prognosis for any future improvement was poor; he believed the impairment of the left shoulder and knee would continue 'indefinitely'[76] in the absence of surgery. Dr Warner offered the opinion that the pain being experienced by the plaintiff in respect of his left knee could be, to a limited extent, alleviated by substantial weight reduction. The observations of Dr Warner are supported by the reports of Dr K.F. King, orthopaedic surgeon, dated 20 December 2012, Dr D. Fish, occupational and environmental physician, dated 5 September 2014 and Mr T. Kossmann, orthopaedic surgeon, dated 9 October 2014.[77]

55 Mr R. Wood, an orthopaedic surgeon, reported that, as at 17 November 2014, the plaintiff should avoid any further surgery to the left knee until he can undergo a knee replacement operation. Mr Wood recommended that the plaintiff's restricted range of motion in the left shoulder also be addressed surgically, subject to the results of an MRI. In the interim period, and to put off the necessity for surgery, Mr Wood proposed commencing the plaintiff on a trial of cortisone injections to the knee and shoulder to manage his ongoing pain and discomfort.[78]

56 Conversely, Dr P. Wilde, an orthopaedic surgeon who examined the plaintiff on 27 August 2013, found that there was 'no indication for surgical treatment at present, either to [the plaintiff's] shoulder or left knee...the physical injuries have healed (satisfactorily but incompletely) and now [the plaintiff] is experiencing the consequences of having developed a pain syndrome'.[79]

57 The plaintiff also suffers from psychological injuries, including major mood disorder, depression and anxiety that has arisen from the Incident. Dr L.J. Hayden, the plaintiff's treating psychologist, detailed in his report of 15 July 2004 how the plaintiff had been making reasonable progress as a result of psychological counselling, but that he had 'slipped backwards quite significantly'.[80] This circumstance was confirmed by Dr B. Hayman, psychiatrist, in his report of 5 May 2005, where he stated that the plaintiff had developed a 'Major Depressive Disorder' and that he also has 'features of Post Traumatic Stress Disorder',[81] observing that the plaintiff 'has become more despondent and despairing as time has gone on, as he sees no clear improvement, nor end in sight'.[82] The plaintiff's prognosis, as at 11 December 2006, was described by Dr Hayman as 'guarded, but poor...[requiring] aggressive treatment...before the window of opportunity to extricate him from his situation closes'.[83]

58 Dr Singh explained that as at June 2006 it was impossible to determine if the plaintiff's psychological condition would improve in the future given his current failure to engage with treatment. Dr Singh described the plaintiff's situation as one where he 'seems to seek short-term medication and substance solutions to his now chronic emotional problems. This is a very poor prognosis situation unless he can discontinue self-medication with marijuana and engage with treatment'.[84] Dr Singh ascribed this circumstance as arising from the 'common pattern of people with PTSD to fall into substance abuse and avoid treatment due to the strong avoidance of facing the traumas mentally. Such avoidance is in fact a key diagnostic feature of PTSD'.[85]

59 Dr D. Weissman, psychiatrist, in his report of 1 August 2012, diagnosed the plaintiff as suffering from 'fairly mild, residual, "primary" or direct post-traumatic stress and anxiety symptoms and traumatisation features' and 'severe, chronic Adjustment Disorder with Mixed Disturbance of Emotions'.[86] Dr Weissman noted, however, that the plaintiff does not appear to be suffering from a 'full-blown Post-Traumatic Stress Disorder'.[87] In terms of the plaintiff's future psychiatric prognosis, it is 'very uncertain and guarded, and likely to be very negative, poor, unfavourable and bleak'.[88] As at 22 September 2014, Dr Weissman reported that there has only been a 'slight improvement' in the plaintiff's psychiatric state - such that he continues to suffer from 'a moderately severe group of accident-related psychiatric conditions and mental injuries'.[89]

60 The plaintiff's injuries severely limit his future employment opportunities. Dr Warner, Dr Wilde, Dr Fish and Dr C. Baker, specialists in occupational medicine, believe that the plaintiff would, with suitable re-training, be capable of sedentary or light duties employment.[90]

61 Dr Wilde observed that the plaintiff 'has worked as a parking attendant in the past and could manage this type of employment on a full-time basis'.[91] Dr Fish noted that the plaintiff could obtain employment as a real estate agent or sales agent,[92] whilst Dr Baker suggested that the plaintiff may be capable of undertaking work as a building inspector.[93]

62 Conversely, Dr King, in his report of 20 December 2012, stated that the plaintiff is 'totally unfit for any sort of work at present'. Dr R.J. Simm, orthopaedic surgeon, in his report of 28 May 2013, stated that the plaintiff's injuries 'have physically incapacitated him for his pre-injury employment. However, he was in his mid-twenties when his physical injuries stabilised and under different circumstances one would have expected him to undergo some further retraining with a view to return to light sedentary employment'. Dr Simm noted that he expected the plaintiff 'to remain out of the workforce indefinitely'.

63 Dr Weissman, in his report of 17 June 2013, offered the opinion that the plaintiff is 'totally incapacitated for all employment - pre-injury duties, suitable duties or alternate duties - on purely psychiatric grounds alone'. This was supported by the report of Dr L.A. Walton on 15 September 2014, psychiatrist, which stated that the plaintiff had 'a significant partial incapacity for all work on psychiatric grounds'. Mr Kossmann, in his report dated 9 October 2014, offered the opinion that the plaintiff 'has no work capacity and the chances of him re-entering the workforce are slim'.

64 In contrast, Associate Professor G. Mendleson, psychiatrist, in his report of 3 April 2013 held the view that the plaintiff 'does not have any loss of work capacity due to a psychiatric illness or psychiatric impairment' as a consequence of the Incident.[94]

65 The defendant submitted that $250,000 was a fair and reasonable sum to compensate the plaintiff in respect of pain and suffering. Conversely, the plaintiff submitted that at least $400,000 or higher would be an appropriate figure.

66 The injuries impact on every facet of the plaintiff's life. I accept his injuries cause him constant pain and restriction. His lifestyle is seriously affected; he has put on weight and a previously strong social life is now extremely limited. He has a loss of libido and disturbed sleep. He lives with his parents. Since the Incident he has at times suffered from depression. His continuing physical limitations result in irritability, depressed mood and he easily becomes distressed and emotional. Further, the plaintiff is a relatively young man. He faces the prospect of further surgery and in general terms, on the evidence, there is very little chance of any material improvement. I assess his damages for pain and suffering in the sum of $335,000.

67 The High Court in Malec v JC Hutton Pty Ltd ('Malec') established the principles to be applied to an assessment of pecuniary loss damages:

When liability has been established and a common law court has to assess damages, its approach to events that allegedly would have occurred, but cannot now occur, or that allegedly might occur, is different from its approach to events which allegedly have occurred...the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded. The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.[95]

68 The differing evidential threshold in respect of the Court's assessment of liability and assessment of damages was delineated by the High Court in Sellars v Adelaide Petroleum NL:

In Malec, this court drew a distinction between, on the one hand, proof of historical facts - what has happened - and, on the other hand, proof of future possibilities and past hypothetical situations. The civil standard of proof applies to the first category but not to the second, particularly when it is necessary to determine future possibilities and past hypothetical situations for the purpose of assessing damages.[96]

The Court is bound to apply these principles in respect of its evaluation of the plaintiff's pecuniary loss damages.

69 The plaintiff cannot claim pecuniary loss for the period of 18 months after the Incident.[97] The plaintiff's claim for loss of earnings, therefore, dates from 6 February 2004.

70 The plaintiff tendered a report of Cumpston-Sargeant, actuaries.[98] The report calculates loss of income based on the assumption the plaintiff would have finished his bricklaying apprenticeship over a four year period and then would have commenced renovating and developing properties full time from 2005 - 2006 until age 65. The report itself noted the considerable uncertainty regarding income that might be derived from such an occupation and stated, 'rather than speculate' loss would be better assessed on the basis that the plaintiff worked for himself as a construction trades worker.

71 Because of the uncertainty as to the claim based on the plaintiff working as a self-employed property developer, Mr Brett, during the course of submissions, provided an aide memoire, putting what he described as 'the other end of the stick' on the claim for pecuniary loss.[99] The aide memoire outlined the plaintiff's claim based on his average earnings in the month he was employed as a bricklayer immediately prior to the Incident, i.e. $708 per week, allowing for 3% annual increments. These figures, Mr Brett submitted, were a minimum basis for assessing pecuniary loss. Mr Brett contended the aide memoire was, in effect, the bottom line and should be accepted as allowing for negative vicissitudes.

72 The claim based on average weekly wages in the plaintiff's last employment presents a more realistic position of the plaintiff's likely earning capacity than the Cumpston-Sargeant report.[100] As discussed below, I have reservations as to the plaintiff's ability to hold down regular full time employment if he had not been injured. Thus, I do not accept the claim properly allows for negative vicissitudes.

73 I note that Ms Brown and Mr Cantanese both provided supportive evidence of the plaintiff's work performance. I accept that for each, to attend court many years after employing the plaintiff (Mr Cantanese) or supervising the plaintiff (Ms Brown), indicates each was impressed with the plaintiff at the time of their association.

74 On the other hand, the plaintiff's work history prior to the Incident was irregular. He ceased work at the Prince of Wales Hotel on 26 September 1999 and then worked for Adecco for three months. There is then a seven month period where he did not work between February and September 2000. He then worked for eight months with Andrew Engineering as a storeman. He resigned from this employment. There is then a period of twelve months prior to him commencing employment with Top of the Town. The records indicate work with Top of the Town commenced on 4 July 2002 and lasted to 2 August 2002. There are no records of payment of the plaintiff for work on 5 and 6 August 2002, the day before and the day of the Incident.

75 I do not accept that the twelve month period between his employment at Andrew Engineering and his work with Top of the Town were entirely taken up with renovating a home at St Leonards that had been relocated from Greensborough. The plaintiff stated that he paid $26,000 to have the house relocated and restumped, and that made it a new home.[101] The evidence as to just what work the plaintiff performed over this period of time is lacking. The plaintiff's brother stated that, based upon what his father had informed him, the plaintiff arranged for people to attend the home to do work on the house.[102] The plaintiff said upon a certificate of occupancy being granted, he moved into the house with his parents.[103] The evidence does not support regular daily engagement on the renovation during this period. Also, the plaintiff had significant issues with drug addiction over this period.

76 Whether the plaintiff was working on the day of the Incident was a matter of dispute between the parties. After assessing the plaintiff's evidence and the evidence of Mr Cantanese that the plaintiff never had a day off,[104] I think on balance it is likely the plaintiff did undertake work on the day of the Incident. The lack of wage details for that day may be explained by a cash payment.[105]

77 Nevertheless, the plaintiff was a user of heroin at the time of the Incident, and he was in the course of travelling with an acquaintance to purchase heroin immediately prior to the Incident. His use had been longstanding, despite treatment with buprenorphine. In addition to his use of heroin, he was a regular smoker of marijuana since he was 17 years of age,[106] and he used other drugs. His use of heroin is apparently now irregular, but that is not the case with marijuana.

78 It was submitted on behalf of the plaintiff that the plaintiff's injuries have exacerbated his use of illicit drugs, particularly heroin. As referred to above, there is little evidence to support this submission. Dr Singh examined the plaintiff on 21 May 2005 and 16 June 2006. The history provided to Dr Singh as to the use of heroin was as follows:

His operations were complicated and Bill described significant chronic pain to such an extent that he has required large doses of opioid analgesics previously. Subsequent to this he described developing a heroin problem. He states this was connected to attempts at achieving better pain control and importantly he denied use prior to developing the chronic pain.[107]

The denial of heroin use prior to the onset of chronic pain is inconsistent with the plaintiff's evidence and the medical records.

79 No treating specialist supports the contention that the plaintiff's drug addiction has been exacerbated by his injuries. The histories provided to various medico-legal specialists of drug use before and after the Incident demonstrate inconsistency with the plaintiff's evidence at trial. The plaintiff told Dr Heyman that his progression to illicit drugs commenced after a motor vehicle accident in February 2001, but that he subsequently, and prior to the Incident, went 'cold turkey' and ceased heroin usage.[108] The plaintiff informed Dr Weissman, on 1 August 2012, that two years after the Incident he developed a significant problem with heroin and cannabis - the heroin problem lasted two years[109] and that he had no problems with drugs until after the Incident.[110] On 17 June 2013, Dr Weissman obtained a history that the plaintiff still uses heroin three to four times a year. On this occasion, he informed Dr Weissman that he did use drugs before the Incident, but he only became addicted after the Incident.[111] Dr Weissman concluded the plaintiff suffered from cannabis and heroin abuse and, by definition, buprenorphine dependency.[112]

80 The evidence I have summarised discloses at the time of the Incident the plaintiff was struggling with a significant drug addiction. Although in work, and liked by his employer, towards the end of the month's employment he had returned to heroin use. That use has continued, and his use of other drugs, principally marijuana, also continues. I am unable to conclude that the plaintiff would have 'grown out of' his drug addiction. There is no evidence to permit such a finding. Indeed the pattern of use after the Incident in general is similar to that prior to the Incident. It has continued now for well over a decade since the Incident.

81 The pain and restrictions caused by the injuries sustained in the Incident have caused psychiatric sequelae manifested by depression, and pain disorder. The pain and restriction has in my opinion meant the plaintiff has continued on high dosages of buprenorphine both as an opioid substitute for heroin, but also for pain control. In this way it may be said the Incident has exacerbated his drug use.

82 I have regard to the evidence that the plaintiff had voluntarily attended for treatment for his addiction prior to the Incident, that he was then supported by a family friend and since has had family support in attempting to address his addiction. Further, I have regard to the fact that the work he was performing and enjoying at the time of the Incident was hard physical work that was well within his capacity.

83 In this case had the plaintiff not sustained injury in the Incident the probability is he would have experienced from time to time periods of unemployment as a consequence of a continuing drug addiction. With maturity and the support of his family,[113] I conclude it is likely there would be some improvement in his addiction, but I am unable to conclude on the evidence in this case the plaintiff would have completely overcome his addiction. He has not overcome it twelve years after the Incident.

84 I consider it appropriate to discount the damages awarded for past pecuniary loss by 35% based on the principles of Malec taking into account all vicissitudes. In relation to future pecuniary loss, I think it appropriate to discount the damages awarded by 25% on the basis that with age, maturity and family assistance the addiction would have become less of an issue impacting on employment. In reaching these percentages I have regard to the potential that the plaintiff might have obtained better remunerated employment.

85 In my opinion it is probable the plaintiff would have worked to what is regarded as the normal retirement age of 65. It was submitted on behalf of the defendant that bricklaying work is hard physical work and this should be taken into account in assessing retirement age; that 60 would be a more appropriate age for calculating loss. There is no evidence to suggest the plaintiff suffers from a pre-existing ailment that would prevent him performing physical work until age 65.

86 Some reports referred to the plaintiff having a capacity for work in a sedentary occupation. His general practitioner Dr Warner, in his report of 16 November 2014, referred to a current capacity of a sedentary nature provided he has received suitable training.[114] Whilst in theory the plaintiff may have a capacity for sedentary employment, I consider the prospect of the plaintiff obtaining any such employment to be highly unlikely. Physical restrictions, chronic pain syndrome and his mental state twelve years after the Incident lead me to conclude there is no real prospect of remunerative employment in the future.

87 The claim made on behalf of the plaintiff is based on his average weekly earnings whilst working at Top of the Town. Those earnings include overtime. The claim includes a 3% annual increase in wages. The evidence demonstrates the plaintiff accepted the overtime offered; analysis of the average wages of a construction worker since 2002 contained in the Cumpston-Sargeant report indicates that the claim of 3% annual increase in wages is reasonably based.[115] I accept these figures for the purposes of calculating past and future pecuniary loss.

88 I allow a figure for past pecuniary loss, including superannuation, from 6 February 2004 in the sum of $436,585. As discussed above, this figure is to be discounted for vicissitudes by 35% to $283,780.

89 Using the multiplier to age 65 of 730.2 and the plaintiff's current wage if employed of $916 net per week, the figure reached for future pecuniary loss is $668,863. As discussed above, this figure is to be discounted for vicissitudes by 25% to $501,647.

90 I have allowed $335,000 for pain and suffering damages.

91 The total damages, being the sum of $1,120,427, is to be discounted by 60% for contributory negligence. Thus I assess damages for the plaintiff in the sum of $448,171.

[1] [2005] HCA 79; (2005) 223 ALR 228 at [12] (Gummow, Kirby and Hayne JJ).

[2] Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510 at 521, [27] (Gummow, Hayne and Kiefel JJ).

[3] [1963] HCA 11; (1963) 108 CLR 491 at 504 (Dixon CJ, McTiernan, Windeyer and Owen JJ).

[4] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at 432, [26] (McHugh J).

[5] Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40 at 47 - 48 (Mason J with Stephen and Aickin JJ in agreement).

[7] See also Ibrahim v Davis [2013] VSCA 238 at 14, [36] (Maxwell P, Bongiorno JA and Robson AJA).

[8] See Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at 602, [158] (Hayne J).

[37] For reasons further explained later in these Reasons.

[39] The defendant did not observe the car stationary behind the bus.

[41] Defendant's Outline of Submissions at 4, [17].

[45] [1985] HCA 34; (1985) 59 ALR 529 at 532 - 533 (Gibbs CJ, Mason, Wilson, Brennan and Deane JJ).

[50] This money was given to the plaintiff on the basis it was to be held on behalf of himself and his brothers. See Transcript at 17.6 - 17.7.

[90] See PX-7, PX-9 and DX-4. Dr Warner, in his report of 8 September 2013, stated that '[the plaintiff] may be capable of performing sedentary duties for which he receives suitable training'; Dr Wilde, in his report of 27 August 2013, stated that the plaintiff 'could work in sedentary or light duties employment. He has worked as a parking attendant in the past and could manage this type of employment on a full-time basis'; Dr D. Fish, in his report of 5 September 2014, observed that the plaintiff is physically 'capable of returning to sedentary work as he spends many hours on his computer [and therefore] there is no reason why he would not be able to do such activities in an employment context'; Dr C. Baker, in his report of 19 March 2004, stated that he believed the plaintiff, with suitable retraining, could return to employment, but that he was totally incapacitated for undertaking his pre-injury employment.

[95] [1990] HCA 20; (1990) 169 CLR 638 at 642-643 (Deane, Gaudron and McHugh JJ).

[96] [1994] HCA 4; (1994) 179 CLR 332 at 350 (Mason CJ, Dawson, Toohey and Gaudron JJ).

[97] Transport Accident Act 1986 (Vic) s 93(10)(a).

[105] Ibid at 107.10 - 107.13 and 110.17 - 110.20.