Smyth v McLeod & Ors [2004] QSC 43

Judgment (102 paragraphs)

[1]

Quinlan Miller & Treston for the first and second defendants.

[2]

McInness Wilson for the third and fourth defendants.

[3]

[1] On 17 August 1997 the plaintiff was the left side rear passenger in a Toyota RAV 4 vehicle ("RAV") on a journey which commenced at Mackay in the State of Queensland. The vehicle was driven by Tracie Lewis who died as a result of injuries sustained in the collision. The only other occupant was Ms Melissa Cave who was seated in the front passenger seat.

[4]

[2] At approximately 12 noon at a point some 28 km north of Bowen the vehicle came into a high speed collision with a Holden Commodore sedan driven by Mrs Barbara McLeod, the first defendant. Her husband was seated in the front passenger seat but he also died from injuries sustained in the collision.

[5]

[3] The plaintiff also suffered injuries and now seeks damages in respect of them from all or any of the defendants.

[6]

[4] The collision occurred on a section of the Bruce Highway which is relatively straight and level with good visibility. The RAV was travelling in a northbound direction approaching a left-hand curve. For this reason the road markings include a continuous white line to prohibit overtaking from the northbound lane. The Commodore was travelling in a southbound direction.

[7]

[5] The total width of the bitumen surface was 9.2 m with a delineated carriageway between the centre line and a fog line of 3.5 m for vehicles travelling in each direction. The speed limit was 100 km per hour.[1]

[8]

[6] The impact of the collision caused the Commodore to spin through 180 degrees coming to rest on the bitumen surface. The RAV left the roadway, passed down an embankment, struck a tree against which it came to rest and partially overturned.

[9]

[7] Each of the vehicles was extensively damaged across the front with more direct damage on the driver's side. The damage to the vehicles and the position in which they came to rest are graphically depicted in photographs taken by investigating police officers. (See exhibits 1 and 2)

[10]

[8] There were various gouge and tyre marks on the road surface which investigating police officers considered were made by the vehicles involved in the collision. The nature and location of these marks have been relied upon by experts to found opinions as to the likely point of impact and the track of the vehicles prior to impact.

[11]

[9] None of the surviving occupants of the vehicles were able to recall the pre-accident course of travel of the vehicles in the moments preceding the collision. Consequently, the likely position of the vehicles at the time of impact must be deducted from the marks on the roadway caused by the impact and the track each vehicle followed after impact. The experts accept that certain critical marks were made by particular vehicles but there is a difference of opinion as to what conclusions can be drawn from those critical facts.

[12]

[10] Three experts in traffic accident investigations were called to give evidence - Mr Ken King, Mr Arthur Chaseling and a Mr Robert Ruller. Each of the experts accept that the impact occurred on the northbound carriageway[2]. The gouge marks depicted in photographs 2 and 3 of exhibit 1 clearly indicate this. Each expert described in similar terms the impact as being an off-set frontal collision. It was not however a typical corner to corner collision where each vehicle rotates after impact. The impact damage to the Commodore was across the entire front of the vehicle but with variation as to the depth of the penetration of the damage. The damage to the RAV is at an angle on the driver's side front corner. According to Mr King, the impact the Commodore rotated "in a clockwise direction so that substantially full contact across the front of the Holden occurred prior to the vehicles separating"[3]. The RAV had "not rotated significantly but had been...deflected after impact and towards its final position"[4].

[13]

[11] The final position of the Commodore some distance from the end of skid marks was the result of the remaining longitudinal force which operated after the rotational force had been expended.[5] This explanation was ultimately accepted by Mr Chaseling in cross-examination[6]. Mr Chaseling also commented upon the lack of debris in the region of the gouge marks as perhaps casting doubt upon the relationship of the gouge marks to the accident. The other experts did not share this concern and nor do I. The photographs taken by the police officers demonstrate quite clearly the relationship between the vehicles and the various marks on the roadway. I accept Mr King's explanation of the manner in which a collision of this kind would give rise to gouge and tyre marks.[7] At p 23 he described the manner in which the marks came into being in the following terms:-

[14]

"Overall, for the situation in question, the marks are as expected for the [Commodore's] wheel trajectories after impact occurring in the vicinity of the gouge marks. The mark in the southbound lane would be expected to be associated with the left rear tyre; the branched mark is likely to have been associated with the jammed right front tyre merging with the left front tyre mark. The left front tyre has produced the most acutely curved branch near the western edge line seen in Figure 6.

[15]

The impact impulse would appear to have passed relatively close [to] the centre line of the RAV4 as little post impact rotation is indicated. If there were significant rotations, the RAV4 would have been expected to be orientated differently at rest and to have tumbled down the embankment rathe than apparently rolling at the bottom; as best can [be] determined, the embankment movement occurred with the vehicle substantially upright as indicated by what appear to be wheel mark and an absence of sliding marks on the left side and roof panels."

[16]

[12] These marks and the measurements made by Mr Ruller formed the factual basis for further analysis of the collision dynamics aided by a computerised simulation programme called PC - Crash. This programme was used primarily by Mr King to verify conclusions which he drew based upon known and assumed facts. One such conclusion based on the damage to the vehicles was that the RAV was "significantly angled at the point of impact to its line of travel"[8]. Mr King undertook the impact modelling on the simulation programme in an attempt to explore the different variables which would have resulted in the vehicles coming to rest where they did following an impact in the area denoted by the gouge marks. The programme allowed the introduction of small adjustments to a number of variables such as speed, line of approach and angle of impact[9] and this allowed the creation of a simulated representation of the impact position and orientation.[10] The simulations illustrated by Mr King during his evidence have been captured in a CD-ROM which forms part of ex 24. The initial simulations resulted in a quantification of the RAV's angle to its line of travel at the time of impact of between 10 and 15 degrees. The quantification of this range of angulation prompted amendments to the pleadings which identified the issues upon which the question of liability between defendants was fought.

[17]

[13] It is clear beyond doubt and accepted by the first and second defendant that the point of impact was on the northbound lane of the carriageway (See para 3(a) Amended Notice claiming Indemnity or Contribution). The first/second defendants however rely upon the extent of angulation as disclosed by the initial simulation to argue that the RAV had travelled on its incorrect side of the carriageway for some distance before crossing to the northbound lane prior to impact.[11] They rely upon the report of Mr Chaseling to submit that the reason for the Commodore being on its incorrect side was in an endeavour to avoid the danger created by the RAV's direction of travel.

[18]

[14] Each defendant alleges that the plaintiff was guilty of contributory negligence by virtue of his failure to wear his seat belt and bears the onus of proving that issue.

[19]

[15] As the determination of the first issue depends upon conflicting expert opinion, I should first consider the manner in which those opinions came to be expressed. The first expert report in point of time was that of Mr Ruller dated 13 April 2001. In that report Mr Ruller referred to the physical evidence of damage to vehicles and road markings and usefully prepared a scale plan of the crash site. He identified that the impact occurred with some angulation to the RAV's line of travel but he appears to have ignored this fact in his conclusions. His ultimate opinion as to the cause of the incident has been "the failure on the part of Mrs McLeod to correct the direction of her vehicle after leaving the curve"[12] is speculative and does not accord with the evidence.

[20]

[16] The next report in point of time is that of Mr Chaseling dated 18 March 2002 which essentially questions the relationship between the vehicles and the marks on the road surface, suggests that the RAV in fact rotated after the impact and concludes that the available information did not allow an accurate reconstruction of the accident.[13]

[21]

[17] The next development occurred when the matter came on for trial on 5 August 2003. On an adjournment application on that date I directed that expert engineers confer prior to the undertaking of a mediation conference. A conference between the engineers pursuant to that direction was held during which Mr King demonstrated his use of the simulation programme for the purpose of supplementing his draft report which had been made on 3 August 2002. In the course of so doing reference was made to the range of the angulation which the RAV had to its intended line of travel. The fact that there was such angulation was first stated in the delivered report of 29 November 2002[14] but the values of that angulation were not stated. Mr. King gave evidence on 3 December 2002 and during the course of so doing reproduced the computer simulations. During cross-examination, counsel for the first and second defendants raised the issue of the degree of angulation which was then stated to fall between 11 degrees - 15 degrees. The simulation undertaken in Court and recorded on the CD-ROM has the angle at 12 degrees.[15] The quantification of this angle became the basis for Mr Chaseling to opine that such an angulation indicated a pre-impact path of the RAV coming from its incorrect side of the road. This point had not been identified prior to the cross-examination and had not been included in any earlier expert report. It was against that background that the first and second defendant sought, and was given, leave to amend its Defence and Notice Claiming Indemnity and Contribution against the fourth defendant. A report from Mr Chaseling dated 11 December 2002 stated:-

[22]

"It was apparent to me that whilst it placed the RAV within its own lane at the time of impact, basic vehicle dynamics meant that it must have come from somewhere to the right of its impact position. It is highly unlikely that it came straight across the road from the other verge at 100 km per hour, so it must have travelled along the road, then turned. Vehicles cannot change their direction of travel instantaneously. They must move in circular arcs, and the minimum radius of the arc in which a vehicle can move is determined by the speed of the vehicle and the transverse forces acting upon it."[16]

[23]

[18] This led Mr Chaseling to conclude that "the most probable scenario then becomes that the driver of the RAV4 drifted out into the wrong lane on the bend, the driver of the Commodore took evasive action, turning right into her "wrong" lane to avoid the RAV4 but the RAV4 driver then turned back into her lane."[17] It should be noted that there was, in accordance with the RAV direction of travel, no bend proximate to the point of impact. But of more significance is the fact that Mr Chaseling's opinion was based upon a consideration of the RAV coming back onto its correct side in a constant state of cornering over a short time period - a second[18] - with the wheel at the extreme cornering angle.

[24]

[19] This conclusion was challenged by Mr King in his report dated 13 January 2003 (ex 36) and in his resumed cross-examination on 15 September 2003. Mr King agreed that Mr Chaseling conclusion was correct on a consideration of two factors in a constant state cornering manoeuvre but that was unlikely to be the situation in the circumstances leading to the collision. Rather, he argued, the likely pre-impact path required a consideration of circumstances of there being an abrupt swerve prior to impact and he presented outcomes of the computer simulation encompassing an abrupt serve in his report.[19] He identified three factors which had to be taken into account, steering angle, transverse acceleration and the yaw velocity which was a product of the other two.[20] The computer simulation took these matters into account.[21]

[25]

[20] Mr Chaseling accepted that this would cause a yawing moment which would be affected by a number of random factors which could produce a result but not for very long.[22] He regarded that the average path travelled by the vehicle would be unaffected by those random factors but did nonetheless accept the possibility that the RAV was at all times within his own lane.[23]

[26]

[21] There is no evidence of any swerve or, necessarily, of the severity of any swerve by either vehicle. The likely timeframes for avoidance would not result in tyre marks being left to evidence any pre-impact serve or the path taken by either vehicle. The difficulty which faced all experts, and ultimately the Court, is the limited number of concrete facts upon which the competing opinions can be based.

[27]

[22] I accept that the gouge marks on the road surface depicted particularly in photo 2 of ex 1 as light coloured marks parallel to the centre line were the direct and immediate result of the impact. I accept that Mr King for the purpose of his simulations used the mark closest to the centre line and at a distance of 92 cm from it[24] as representing the front driver's side position of the RAV at the time of impact. I accept that the other marks on the roadway depicted the movement of the Commodore as described by Mr King in his reports and in his evidence. I accept that when the collision occurred the RAV was entirely on its correct side of the carriageway and that the Commodore was, by at least 1 metre on its incorrect side of the roadway. I accept that the nature and extent of the damage to each vehicle and its ultimate position of rest leads to the conclusion that at the time of impact the RAV was at an angle to the northbound line of travel but it is not possible to determine the extent of that angulation.

[28]

[23] The second defendant relies upon the 10 degree - 15 degree angulation revealed by Mr King's first simulation exercise to argue that the RAV in its pre-impact path was n the incorrect side of the carriageway. If this is accepted the second defendant argues that the Court should conclude the reason for the Commodore being on its incorrect side was an endeavour to avoid the danger created by the RAV's direction of travel.

[29]

[24] The second defendant bears the onus of establishing the negligence of the first defendant. The plaintiff, by para 4A of his Further Amended Statement of Claim relies upon the second defendant to establish the case against the third and fourth defendants other than his reliance upon his allegations against the first defendant.

[30]

[25] Ultimately, the issue depends upon whether the limited facts can sustain the conclusions reached by Mr Chaseling.

[31]

[26] I am not persuaded that the determination of the range of angulation achieved by the first round of Mr King's simulation leads to the conclusion that the RAV was on its incorrect side of the roadway prior to the collision. With the refinement in the second round of simulations showing a much lesser degree of angulation could be achieved (six percent)[25] the conclusion becomes less likely. The accuracy of simulation programmes is obviously limited by the reliability of the data which is introduced. The quantification of the relevant angulation which came about as a result of this simulation exercise prior to December 2002 did not have that quantification as its objective. The subsequent simulations did introduce further relevant variables such as the yaw effect but this does not lead to any greater reliability sufficient to make a finding as to the pre-impact path of the vehicles. With such a range variations in the angulation of vehicles at impact, a conclusion drawn from them amounts to a guess which the court is "not authorised to do"[26]. The second defendant has failed to satisfy me on the balance of probabilities that the RAV was at anytime in its journey on its incorrect side of the roadway. That being the case I conclude that the collision was caused by the presence of the Commodore on its incorrect side of the roadway which thus bespeaks negligence on the part of the first defendant. I find that the first and second defendants are thus liable for the plaintiff's damages.

[32]

[27] On this issue the second defendant alleged in para 2(e) of the Amended Defence that the plaintiff failed to wear a seat belt and that he was lying unrestrained on the rear seat of the vehicle when he knew or ought to have known that it was unsafe for him to do so. In his initial reply the plaintiff countered by not admitting those allegations and stating that he believed "that he was probably wearing a seat belt although he was lying on the rear seat of the vehicle"[27]. In his Further Amended Reply the statement was amplified saying that the plaintiff believed "that he was wearing his seat belt while sitting on the back seat leaning on the back passenger door with both feet on the floor of the vehicle"[28].

[33]

[28] The plaintiff, in evidence, stated he could not remember the collision[29] and therefore presumably his position of the vehicle at that time. He did recall being in the vehicle after it had left Mackay. He was sitting in the left rear passenger seat which he described as being "cramped" and that the front seat was "against his knees"[30]. At some stage in the journey the plaintiff went to sleep, he does not recall whether prior to that time he was wearing a seat belt[31] but stated that it was his usual practice to do so.[32]

[34]

[29] The plaintiff's first recollection post accident was waking up in a wrecked vehicle. He was then on the roof of the upturned vehicle[33] and obviously not then restrained by the seat belt. He had been unconscious for an indeterminate period. Upon waking he was able to assess that the driver was dead and the other passenger was hysterical. He attempted some brief assessment of his own injuries but then lost consciousness. He regained consciousness only after the arrival of the ambulance and when he was being extricated from the vehicle. He was then transported by the Royal Flying Doctor Service to the Townsville General Hospital. The transportation report of the Royal Flying Doctor Service identifies the injuries as - fractured pelvis, laceration to the chin, compound fracture of the elbow, bruising of the forehead.[34] The plaintiff cannot recall whether he suffered any bruising across his chest and no such injury appears to have been listed in any of the reports or medical records. In or about May 1998 the plaintiff recorded in a statement to police that he was wearing a seat belt at the time of the incident. However, in evidence at the coronial inquiry the following exchange occurred:-

[35]

"Were you wearing a seat belt? - Yeah, I think so. I'm not - I'm not exactly sure to be honest, it's all a bit grey but yeah I normally do."[35]

[36]

[30] I accept that the plaintiff was giving the best of his recollection when he gave that evidence and again in his evidence before me. That however leaves open the question of whether the plaintiff was in fact wearing a seat belt at the time of the collision.

[37]

[31] The onus of proving this allegation is obviously on the defendants. To discharge this onus in the absence of any direct evidence on the point the defendants rely on a variety of circumstances to contend that the plaintiff was not in fact restrained by a seat belt.

[38]

[32] Firstly, the defendants suggest the plaintiff has been inconsistent in his statements. They draw attention to the change in the plaintiff's pleaded response to the allegation and to the fact that the plaintiff positively asserted to two medical practitioners that he was wearing a seat belt.[36] Such a statement is in accordance with the plaintiff's belief and he does not appear to have been questioned by either doctor as to the basis for his assertion. As to the change in terminology between the original Reply and the Further Amended Reply, that has all the hallmarks of reconstruction in which the legal advisors may have played the greater role. I accept the plaintiff's answer that he did not recall ever giving different instructions to solicitors as to his position in the seat of the vehicle.[37]

[39]

[33] Secondly, reference is made also to statements in hospital records which the defendants argue ought to be attributed to the plaintiff. The first reference to seat belt in the medical records occurs in the Townsville General Hospital record (ex 33) on the day of the incident in notes made in the orthopaedic section. The prior notations refer to the plaintiff being "asleep in the back seat" [transportation report of Royal Flying Doctor Service] and repeated in the notes of the Emergency Department. The notes made in the orthopaedic section and presumably after referral from the Emergency Department contain the following notation:-

[40]

[34] The author of that notation was not identified nor was the basis for the entry shown. The timing of the entry is likely to have been prior to the surgery which is the topic of the next entry in the records. If so, the notation was made at a time when one would expect the plaintiff to be heavily sedated. In the absence of any explanation as to the source of the statement and any evidence as to the plaintiff's capacity to respond and to recall, it is difficult to treat the entry as an admission by the plaintiff. It might just as likely be a comment on the part of the maker of the record theorising as to the cause of the injury.

[41]

[35] The other entry in the records was one made by Dr Trudy Cullinane who was called to give evidence. Dr Cullinane was in charge of the Princess Alexandra Hospital Infectious Diseases Ward to which the plaintiff was admitted on 2 September 1997 (some four days after the incident). Dr. Cullinane's notation records the plaintiff's history as -

[42]

"MVA 17/8/97 -> Lying across back seat of car sleeping NWSB

[43]

The "NWSB" notation is the abbreviation for "not wearing seat belt".

[44]

[36] Dr. Cullinane described her practice on the admission of a patient to the Infectious Diseases Ward, she said:-

[45]

"I would review the notes fully and then go and do a full history and examination of the patient, then I would document that and then review their current blood test and other test results that they'd have done and put that summary into the notes."[39]

[46]

The resultant notes would be a combination of information gained from the patient directly or from other sources[40]. Dr. Cullinane had no recollection of the terms of the conversation with the plaintiff at the time note was made.[41] Dr Cullinane initially believed that as there was no prior note in the medical records available to her about the plaintiff wearing his seat belt then the information must have come directly from him.[42] Her attention was subsequently directed to the referring letter from Townsville General Hospital and to that hospital's discharge summary. Save for the NWSB reference those documents contain all the information which was included in the hospital record. Dr Cullinane, unsurprisingly, has no present recollection of the terms of any conversation she had with the plaintiff. Prior to being directed to the documents from the Townsville Hospital records she assumed that the information came from the plaintiff.[43] Initially she was quite firm that the details of the accident must have come from the plaintiff because there were no notes from which otherwise to obtain the information.[44] The witness conceded that those records would have been amongst the notes that she looked at before making a notation. This at least raises some doubt of whether the source of the record came directly from the plaintiff.

[47]

[37] In those circumstances I have to weigh the reliability of that notation being sourced to the plaintiff and the accuracy of the note against the plaintiff's evidence on oath on two occasions that he cannot recall whether he was wearing a seat belt. In the end result I am not prepared to act upon the recorded note as indicating a frank admission that he was not wearing a seat belt at the time of the incident.

[48]

[38] Thirdly, the defendants suggest that the nature of the plaintiff's injuries indicate that he was not restrained by a seat belt at the time of impact. The plaintiff sustained injuries to various parts of his body but particularly to his head, right pelvis, left elbow and right arm. The rear compartment of the RAV was cramped and if he was seated in an upright position his knees would have been very close to, if not indeed touching, the rear of the front seat passenger. The head and elbow injury could have been caused whether or not the plaintiff had been restrained in a seat belt. The injury to the plaintiff's pelvis was a closed, comminuted fracture of the right acetabulum. Such an injury required the imposition of longitudinal force along the femur. The process of dislocation and fracture of the hip joint is illustrated in Figure 28 in Mr King's report of 29 November 2002[45] which figure postulates front passenger impact against the dashboard of the vehicle. The precise location of the object struck is not critical, nor is the degree of flexion of the knee. What is required to cause the injury is simply that the force be exerted longitudinally along the femur.[46] Mr King was asked to consider whether the same injury could occur to the rear seat passenger whilst restrained. He said -

[49]

"The RAV4 is relatively small and rear seat passengers are likely to be sitting with their knees close or against the front seat back. Obviously, such seat backs are padded although they contain a solid (usually metal) frame. The loading and subsequent injury is consistent with that expected for a seated passenger moving forward to strike such a surface during the primary impact. At first impact, decelerations (and hence impact force with interior objects) would be maximised with the body in the appropriate posture."

[50]

Dr. Fraser agreed with that proposition.[47]

[51]

[39] For an unrestrained passenger Mr King expressed the view that such an injury was less likely because the passenger is unlikely to have the knee flexed. Dr Fraser disagreed with this proposition expressing the view that the possibility remained for a body to be flung around the vehicle and to adopt the necessary posture.[48]

[52]

[40] For an unrestrained occupant in a violent collision and a subsequent rollover the opportunity for a passenger to be in the right posture and to be subjected to the same force would undoubtedly arise. The point which must be considered is the relative likelihood for the injury occurring for a passenger seated with knees flexed at impact as opposed to the more opportunistic outcome of being in the required position at the moment when the force is applied. The studies to which Mr King referred identified that the risk of this injury remains even though a passenger is restrained by a seat belt. Although the studies related to a front seat passenger the effect for a rear seat passenger with the knees flexed and close to the front seat back would, in my view, be the same. I accept as accurate this identification of the risk but of course that risk would no doubt be increased if the passenger was seated in this position but unrestrained. The consequence of this discussion is that whilst the nature of the pelvis injury raises the possibility that the plaintiff was unrestrained it cannot, in isolation, lead to a conclusion that it was more probable than not.

[53]

[41] However the addition of the other injuries and the fact that the plaintiff was unrestrained when he regained consciousness does lead me to conclude on the balance of probabilities that he was not wearing a seat belt at the time. There is no direct evidence about the functionality of the seat belt. But given the relative newness of the vehicle and the fact that the plaintiff made no comment about the functionality I infer that the seat belt was in proper working order. On that basis the plaintiff ought to have been restrained by the seat belt even in a roll over situation. Mr King gave an explanation that injuries to arms and legs could have been casued in the rollover but none of the experts can give a satisfactory explanation for his being unrestrained other than a seat belt failure and there is no evidence of this.[49] There is also the suggestion that the plaintiff may have unconsciously released himself from the seat belt after the impact. But this is mere speculation. The scope and diversity of the plaintiff's injuries and his being unrestrained renders more probable the fact that the plaintiff was unrestrained.

[54]

[42] On the basis of this finding I apportion against the plaintiff 20% contribution to his own injuries.

[55]

[43] The plaintiff was born on 2 March 1967 and was thus 31 years old at the time of the incident. He is now almost 38 years of age. Prior to the incident he was in good health and physical condition. He competed as an outrigger canoeist on a regular basis apparently with some success. There was a reference in the evidence to his being at "state level". He competed in this rigorous sport at least every month and trained four times a week. His physical appearance is depicted in photograph "D" annexed to the Quantum Statement (ex 3).

[56]

[44] After leaving High School the plaintiff completed an apprenticeship qualifying as a tradesman electrician. He then undertook a four year Bachelor of Engineering course at James Cook University and graduated with second class honours. He gained employment with FNQEB as an electric engineer. He states that his personal life was happy. He did not have any psychological problems and he felt his life was "well balanced".[50]

[57]

[45] As a result of the collision the plaintiff sustained the following injuries:-

[58]

(i) Closed head injury with concussion

(ii) Soft tissue injury to the cervical spine region

(iii) Soft tissue injury of the lower back

(iv) Compound fracture of the olecranon with capitellar fracture

(v) Closed fracture of the left medial cuneiform bone

(vi) Closed fracture of the right ulna

(vii) Comminuted fracture dislocation of the right acetabulum

(viii) General lacerations, bruising and abrasion

[59]

[46] The plaintiff's initial treatment which included surgery on his right hip and left arm was undertaken at the Townsville General Hospital whence he had been transported by the Royal Flying Doctor Service from Bowen.

[60]

[47] He remained at the Townsville Hospital for eight days before being transferred to the Princess Alexandra Hospital in Brisbane for further treatment. There he underwent a series of surgical procedures, both on his hip and left arm. The procedures and the period of recuperation were attended by considerable pain necessitating narcotic medication. He was discharged from the Princess Alexandra Hospital in a wheelchair on 3 October 1997. He was re-admitted to the hospital on 14 October 1997 for a fortnight's intensive physiotherapy using a continuous passive movement machine. This treatment was also attended by considerable pain. He continued physiotherapy exercises after his discharge and in November commenced to bear weight on his right leg. He returned to his home in Cairns on 2 December 1997.

[61]

[48] The plaintiff continues to experience limitation in his physical capacities resulting from these injuries. In respect of his right hip he suffers constant pain which worsens on activity. Prolonged sitting or standing also increases pain. This hip condition will continue to deteriorate leading to the need for a hip replacement. The taking of this step will, because of the plaintiff's young age, be delayed for as long as possible. The orthopaedic surgeons who have examined him - Drs Thomas, Gillett and Fraser - agree that he will come to this procedure probably within 10 years. He will require a revision of the procedure approximately 15 years thereafter and there is a 30% chance of his requiring a subsequent revision within the term of his life expectancy. The plaintiff will require a period of convalescence after each procedure of between six weeks and up to three months.

[62]

[49] Dr Gillett assessed the extent of impairment to the plaintiff's right leg as presently being 20% but increasing to 37% and then to 50% after he undergoes the revision arthroplasty. I accept this opinion about the extent of the plaintiff's loss of use of his right limb. This obviously severe limitation in the use of his leg has been acutely felt by the plaintiff who was so physically active and dedicated to his physical fitness.

[63]

[50] The plaintiff is right hand dominant. The fracture to his right arm appears to have healed without complication. The fracture to his left elbow has, however, given rise to continuing problems in the form of pain and some limitation of movement. Surgical rods are still in situ and close to the surface of the skin giving rise to additional pain if they are bumped. The orthopaedists suggest the rods should be removed and anticipate the cost of this procedure to be $2,000 with an absence from work of three to four weeks. The level of permanent impairment of the left arm is assessed at 15% loss of use. The arm is wasted and gives rise to increasing pain and discomfort on heavy use. These symptoms are likely to increase over time.

[64]

[51] The plaintiff suffers from intermittent low back pain and sciatic nerve pain with associated numbness in part of his right foot. He has some pain in the soft tissues of the cervical spine area. He also has surgical scarring on his hip and left elbow and on his chin. The scarring is not disfiguring.

[65]

[52] The plaintiff suffered a closed head injury which has resulted in reduced cognitive ability and in impaired memory. Dr Boyce, neurologist, described the injury as "a significant closed head injury".[51] Dr Ohlrich described the condition as "relatively mild" but added that "significant deficits in cognitive function can certainly occur following relatively minor head injury."[52] The difference of opinion appears to relate to an assessment of the period of unconsciousness and amnesia which is somewhat undetermined. Dr Boyce was concerned that there may also have been frontal lobe damage and recommended that an MRI scan be done. This scan returned a normal result but Dr Ohlrich said this did not exclude the presence of subtle brain injury.[53] Both neurologists believe that these deficits will have a significant effect on the plaintiff's present employment, his promotional opportunities and his educational prospects.

[66]

[53] The plaintiff has described in detail the impact his cognitive deficits and impaired memory have had on his work effort. His concern about these matters caused him to seek the assistance of psychologist Ms Sharon Daniels, who undertook psychometric testing. Similar testing was also undertaken by Dr Lucille Douglas. The testing supports the opinions expressed by the neurologists though they differ in the measurement of that impairment. Of more significance, however, is the manner in which the impairment affects the plaintiff's day-to-day activities. The plaintiff has difficulty in verbalising in the sense of not being able to remember the right word or to express himself clearly or quickly when needing to do so. His deficits in this area has been the subject of testing by speech pathologist, Kym Nicastro, who opines that the plaintiff has a "mild/moderate high level language disorder particularly related to his ability to organise and express his thoughts verbally in an efficient manner."[54] She described "the overall impact of Mr Smyth's communicative deficits in his everyday functioning across all aspects of his life to be significant."[55] The plaintiff was also examined by Mr Geoffrey Lewis, audiologist, who opined that the plaintiff's performance on tests reflected an abnormality of the neurological system and in particular the retrieval of auditory information in the short term.[56]

[67]

[54] After the accident the plaintiff sought to gain further educational qualifications by undertaking a Master of Business Administration at the Deakin University. This course is offered in conjunction with the Association of Professional Engineers, Scientists and Manager Australia (APESMA). His fees for the course were paid by ERGON Energy. The plaintiff found great difficulty with the course and was only able to complete sufficient subjects to be awarded the Graduate Certificate. It is common for candidates for the MBA to seek acknowledgment of their progressive achievement by having the awards of Graduate Certificate and Graduate Diploma in the partial completion of the masters programme. I accept that the plaintiff's intention was at all times to complete the Masters degree. Based on his performance in the under graduate programme and his proven work ethic, I expect that he would have had little difficulty in completing the Masters degree had he not suffered the cognitive deficits and impaired memory caused by his injuries.

[68]

[55] The plaintiff married in October 2001 after an association which commenced eight months after the plaintiff sustained his injuries. Mrs Smyth gave evidence confirming the difficulties which the plaintiff experiences with any form of activity. When he walks for even a short distance she observes that he is in pain. He is unable to do some of the heavier aspects of gardening and household cleaning. She spoke also of the impact of the plaintiff's forgetfulness on their life together, such as forgetting appointments and mislaying various items. The couple have no children and Mrs Smyth is engaged in fulltime employment. This gives rise to some issue as to the extent to which household help is mandated by the plaintiff's incapacity as opposed to the couple's desire not to have their leisure pursuits limited by house cleaning and gardening.

[69]

[56] Other witnesses - Julianne Pixton and Andrew Lister who knew the plaintiff before the incident - were able to make comparisons as to his pre-injury and post-injury physical and mental capacities. It is undoubted that the plaintiff has suffered very significant physical detriment which is manifested by change in physical appearance, wasting of some limbs and limitation in movement. These aspects discourage his undertaking the types of activities which he had previously enjoyed and in which was highly proficient. This has seriously impacted on the plaintiff's capacity to enjoy life.

[70]

[57] Taking all these matters into account I would allow for general damages the sum of $100,000, $50,000 of which is attributed to the past period which will attract interest at the rate of 2% for 6.5 years. This adds a further component of $6,500.

[71]

[58] After the plaintiff completed his Bachelor's Degree in Electrical Engineering he found employment with FNQEB (subsequently to be included in the conglomerate ERGON Energy) and he excelled in his work. He showed a particular interest in going into the area of business development. This activity involved aspects of the design and engineering of new electrical systems, completing business and marketing plans for renewal energy products, attending on customers and participating in the installation of the plant. He was accepted as a team member of this business unit in February 1997. He found the work exciting and expected to have made a successful career in it. He hoped, particularly, to take advantage of the commercialisation of electricity supply industry to gain more highly remunerated positions.

[72]

[59] The plaintiff returned to work on 8 December 1997 but only in a part-time capacity. He gradually increased the hours and spent a period time relieving as manager of the business unit. The plaintiff found difficulty in completing his work as a consequence of the reduced cognitive functioning and impaired memory. This caused him considerable stress and it necessitated his working increased hours to compensate for his reduced performance.

[73]

[60] In December 2000 principally to reduce the level of stress, he applied for and was successful in gaining an alternative position as generation manager in the Network Assets Group. In this position the plaintiff was required to supervise staff looking after generation assets in remote communities. The work was more routine but less glamorous than that of his earlier position. The plaintiff alleges that it offers less opportunity for advancement and it is outside the stream where workers are recruited for more highly paid jobs. Even in this position the plaintiff works longer hours in order to complete the tasks assigned to him. In his quantum statement he described that he typically worked between 7.30 am and 7.30 pm where his colleagues would work only from 8.00 am to 5.00 pm. Other witnesses in senior management positions however state that the generation managers do work longer hours than those suggested by the plaintiff and that the plaintiff himself probably worked longer hours before his injury in any event. Nonetheless, I accept that the plaintiff now is forced to work longer hours to achieve the outcomes expected of him.

[74]

[61] From the perspective of the plaintiff's superior officers and his work colleagues his performance still remains of a high standard. Three of his work colleagues gave evidence. The first of these, Mrs Normington, the Human Resource manager, was able to compare the financial impact of the plaintiff's transfer to the Network Unit. I accept her evidence that the transfer was a promotion for the plaintiff and resulted in his obtaining a higher salary.[57] Indeed, the summary of the salary paid to the plaintiff (ex 41) shows steady, progressive increases in his remuneration after the accident. His promotion as generation manager in the Network section was significant in this regard. There was no detail as to what would have been the plaintiff's earnings had he stayed in the Business Development Unit. Had he remained in that unit it seems likely that when Mr Behrendorff left on 30 June 2002 the plaintiff would most likely have succeeded him as he had previously acted in the position. As at that date the salary differential between the two positions was $9,000 gross ($104,000 - $95,000)[58]. That potential to earn a higher income by replacing Mr Behrendorff would only have been realised if the plaintiff had stayed in the Business Development Unit on a lesser salary than he received as generation manager following his promotion. There is no precise detail of that differential and in the absence of the detail I am not able to quantify any possible loss of past earnings on this account. I propose, rather, to include the likely shortfall for this loss of opportunity in the global assessment of the plaintiff's lost earning capacity stemming from his injuries.

[75]

[62] Mr Behrendorff was asked about the plaintiff's pre-accident and post-accident capacities but he was not able to make a useful comparison.[59] Mr Kenneth Ashe, the Network Lines Asset Manager and person to whom the plaintiff directly reported, carried out a formal review of the plaintiff's work performance. Two such reviews were tendered - ex 42 and ex 43. These reviews in general terms show a better than average performance, though with a few areas of weakness, e.g. struggling with organisational change and difficulty in some communication.[60] Mr Ashe was not aware of the hours which the plaintiff worked in order to achieve this result. He expressed the view that the plaintiff did not display ambition to meet "more challenges than he currently has"[61]. This comment appears to me to indicate a significant reduction in the plaintiff's pre-accident capacity.

[76]

[63] I am satisfied that the plaintiff before the accident was ambitious and keen to improve his position and a high achiever. This is further illustrated by his attempting, in 1999, to undertake the Masters Programme at Deakin University. Although his success was limited in that attempt it was undertaken despite his serious cognitive deficits. I am satisfied that his move to the position of generation manager in the Network Unit was in part motivated by his sense of inability to cope with the pressure in the business unit and the need to reduce the stress of working there.[62] I accept also that the position was a promotion resulting in his receiving a higher remuneration. I find that the plaintiff was well motivated for work and would have been likely to succeed in his quest for further education and to obtain well remunerated positions in the electricity industry. He was well placed to take advantage of the expansion and commercialisation which was then being undertaken.

[77]

[64] The plaintiff claimed that he often received approaches from potential employers and recruitment agencies offering him positions. This claim is not backed up by any significant documentation. There is evidence that he made four specific applications for alternative employment but only reached interview stage on two occasions. The records of the recruitment agency Morgan and Banks disclose that the plaintiff was interested in relocating to capital cities. There can be no doubt however that the reduction in the plaintiff's cognitive capacities and his impaired memory make it unlikely that he will advance in this highly remunerated industry to the extent which otherwise would be the case. I am satisfied that he has suffered a very significant diminution in his capacity to earn income.

[78]

[65] The task of quantifying that loss is not an easy one. The plaintiff has tendered a report from a Mr Christopher Hart, of the Hart Consulting Group (ex 14) which purported to make a comparison of wage levels for various positions in sales units in the electricity supply industry. The validity of these comparisons are challenged by the defendants on the basis that they were concerned with retail sales positions whereas the plaintiff's position was in the technical areas of generation and infrastructure management. This confusion means that the salary comparisons set out in Mr Hart's report (ex 14) cannot be directly related to the plaintiff's circumstances. However, there is sufficient information in the report to establish the trends and opportunities in the energy business which is coming increasingly under private control. I consider the true position was summed up by Mr Hart in re-examination in the following passage:-

[79]

"Yes, look, what we had found throughout sort of '97 through to the 2000 period was there was a strong demand in the marketplace for competent, entrepreneurial, technically-based engineer qualified individuals to perform functions within the selling of energy to the markets. That was - there was a high demand. Logically David Smyth's qualifications were of a typical nature to be employed to perform those functions, along with, as he in dictated that he was starting an MBA in 1999, further justification for saying with those sorts of qualifications and experiences would be highly sought to perform the sorts of roles that we'd provided market data on."[63]

[80]

[66] I do not consider that the plaintiff was locked into the technical side of the industry. His pursuit of an MBA indicates an intention to broaden his appeal. I find, but for the injuries, the plaintiff would have completed that qualification.

[81]

[67] The plaintiff is an impressive young man. Given his approach to the sporting challenges there is no doubting his tenacity and his capacity to succeed. He had reached middle management level in his early thirties. Thus he would, as a matter of probability, face the middle period of his working life with a high degree in management, technical qualifications and experience, a good work history and a well-balanced attitude to life. The chances of his attaining higher levels of management in industry generally, but particularly in the energy industry, were in my view very good. Such attainments also bring the opportunity to participate on the boards of corporations. There is no suggestion that this was likely but some such prospect was there.

[82]

[68] The consequence of his physical limitation, his loss of mental acuity and self-confidence is to make unlikely his gaining such high level positions. Whilst he is likely to continue in his present secure employment his long term future is not without risk. He will no doubt face challenges from other employees in the event of corporate restructuring. The evaluation of this loss requires me to note that the median salary of a state manager in 2002 was $169,300.[64] That sum does not appear to make any allowance for the value of the usual perquisites of managerial position. Comparing that with the plaintiff's present salary of $100,787[65], there is a differential of $68,500 per annum gross which would equate to somewhere between $500-$600 per week net. If that loss were projected over the last 18 years of the plaintiff's working life to age 65 the calculation would show a loss of between $230,400 and $192,000. Such a calculation is only a guide and must be subject to some discounting for contingencies. But the plaintiff's qualifications and experience would most likely have allowed him significant flexibility in his employment and the opportunity to gain income from other sources. The contingencies would not necessarily be adverse.

[83]

[69] I assess the loss of actual earnings prior to trial in the sum of $5,668 together with interest at 5% for 6.5 years which adds a further component of $1,842. Loss of superannuation benefit on this sum should be allowed at 6% which calculates to an allowance of $340.

[84]

[70] Concerning the loss of earning capacity, the plaintiff seeks an allowance of $150,000 and the defendant suggestions an amount of $110,000. That range in my view, does not reflect the serious economic consequences for this plaintiff. He showed the signs of being upwardly mobile in his profession. He was likely to succeed in gaining higher qualifications and with that the chance of very high remuneration. The injuries have precluded that opportunity and have put him at some risk in working to normal retirement. The loss of that chance is not adequately reflected in the simple comparison of salary levels undertaken. After consideration of the figures referred to above, the inclusion of loss during future surgery and the inclusion of an allowance for loss of opportunity, I would allow $200,000 for loss of earning capacity. Loss of superannuation benefit should be allowed on this sum at 9% which calculates to $18,000.

[85]

[71] The plaintiff has claimed under the Griffiths v Kerkemeyer principle for domestic services provided by family members and friends. The amount involved is $5,400. Further to that the plaintiff has paid for gardening and cleaning services at various times some of which have been included in special damages. The plaintiff has continued to pay for gardening and cleaning services in amounts that vary, depending on the residence in which he and his wife were living. For the period of 18 months before trial the payments were $50 per month for gardening and $30 per week for domestic cleaning. These expenses were said to be incurred because of the plaintiff's physical limitations and because of the effects of his having to work longer hours consequent upon the injuries.

[86]

[72] The defendants agree that the amounts claimed for gratuitous services is appropriate as are the items agreed to in special damages. However, the defendants argue that the present cleaning and gardening regime is a consequence of the fact that the plaintiff and his wife work full time and the provision of services is a matter of convenience.

[87]

[73] In my view there is some support for both arguments in the circumstances and as a consequence the plaintiff's claim will have to be adjusted. There is no doubt that the plaintiff would require some assistance in the heavier tasks such as tree lopping and rubbish removal and in the heavier aspects of domestic cleaning. He is entitled to be remunerated for that part of the expense which he has incurred which can be truly related to his physical limitations. In my assessment an allowance of $15 per week to cover these items is appropriate. To avoid any suggestion of double-dipping this allowance should commence in October 2000 which to the present time is approximately 180 weeks. I would therefore allow $2,700 on this account with a further component for interest in the sum of $470. The total allowance then for past care and expenses will be $8,570.

[88]

[74] The amount of special damages have been agreed in the sum of $2,970 together with interest in the agreed sum of $891.

[89]

[75] Each of the orthopaedic surgeons agreed that the plaintiff will have to undergo future surgery. Firstly there is the minor surgery to his left elbow for the removal of pins at a cost of approximately $2,000. Secondly, there will be the cost of revision of the hip replacement surgery on most probably two occasions. The first occasion is likely to occur approximately six years from now and a second revision some 20 years after that. There is a prospect also that a third revision might be required but there is difference of opinion on this matter. The present value of the costs of such surgery is approximately $22,000. I will round that figure off to the sum of $20,000.

[90]

[76] Future pharmaceutical and other expenses have been agreed in the sum of $7,500. The total allowance for future expenses is $27,500.

[91]

[77] The plaintiff's future care centres upon his convalescence from the proposed surgery. In respect of the hip revisions he would require assistance for the initial six weeks during which time he will be unable to attend work. He may require some lesser assistance over a three month period. The plaintiff's claim is predicated on his requiring five hours per day for that six week period, in respect of each of those operations which will be delayed by six years and 26 years respectively.

[92]

[78] Additionally, the plaintiff claims for future expenses associated with gardening and domestic cleaning.

[93]

[79] The defendant is prepared to concede future gratuitous care on the basis of one hour per week which seems to be intended to cover both the period of more intensive need as well as the ongoing need for domestic assistance.

[94]

[80] In my assessment the plaintiff will continue to incur expenses associated with the heavier aspects of domestic cleaning and gardening, for the future this should be assessed at $15 per week and allowed over 35 years. ($876 totalling $13,140). To this should be added a general allowance for future gratuitous care to take in the period of intensive need as well as some allowance for the more general ongoing difficulties. I would assess this component at $5,000 making the total allowance under this heading of $18,140.

[95]

[81] In summary then I would assess the plaintiff's damages in accordance with the following allowances:-

[96]

[82] In accordance with the apportionment for liability the plaintiff should recover the sum of $312,336.80 (80%).

[97]

[83] 1. Judgment for the plaintiff in the sum of $312,336.80

[98]

2. Judgment for the third and fourth defendants against the plaintiff.

3. Judgment for the third and fourth defendants against the first and second defendants on the contribution proceedings.

4. The question of costs will be adjourned to allow parties to make submissions in writing within the next 14 days.

5. Each party shall have liberty to apply upon giving to the other parties two days notice.

[99]

[17] Ex 35 para 3.6 and see also para 4.4

[100]

[26] Miller v Livingstone Shire Council (2003) QCA29; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

[101]

[36] Ex 7, transcript 167/20; and ex 31 respectively

[102]

[46] Ex 24 at p 27; per Dr Fraser transcript 234/1

At a glance

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Decision date

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Catchwords

Judgment (102 paragraphs)

Parties

Cases Cited (2)