Brewster v Milne & Anor; White v. Milne & Anor [1993] QSC 369

State Reporting Burea 1 TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copil·s tht.•reof must not be made or sold without the written authority of the Uirector, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION KIEFEL J No 2115 of 1986 No 2116 of 1986 JOHN STURGEON BREWSTER and PETER MILNE and THE NOMINAL DEFENDANT CHRISTOPHER WHITE and PETER MILNE and THE NOMINAL DEFENDANT BRISBANE .. DATE 5 I 11 I 9 3 JUDGMENT ~~- _ ... -"' ,.~~· 1 Plaintiff Defendant Third Party Plaintiff Defendant Third Party -- 1 of 31 -- 051193 jjh/lu (Kiefel J) HER HONOUR: In action 2115 of 1986 there will be judgment for the plaintiff, Mr Brewster, against the defendant in the sum of $71,104.45. In action 2116 of 1986 there will be judgment for the plaintiff, Mr White, against the defendant in the sum of $537,058. In each action I propose to order that the defendant pay each of the plaintiff's costs of the action to be taxed. In relation to the third party proceedings, I give judgment in each of those proceedings for the third party and I propose to order that the defendant pay the third party's costs in the proceedings to be taxed. HER HONOUR: In both of the actions the order for costs will be that the defendant pay each of the plaintiff's costs of the action including reserved costs to be taxed. In the third party proceedings the order will be that the defendant pay the third party's costs in the proceedings including reserved costs to be taxed. I publish my reasons. HER HONOUR: The order for costs with respect to Mr Brewster in action 2115 of 1986 will be that they are taxed on a solicitor and client basis. JUDGMENT 2 10 20 30 40 50 60 -- 2 of 31 -- I ... ~ ,q.~~ ~ ""' . f'. .,._..f '{ J IN THE SUPREME COURT OF QUEENSLAND Brisbane [Brewster v. Milne] [White v. Milne] BETWEEN: AND AND BETWEEN: AND AND IOHN STURGEON BREWSTER PETER MILNE THE NOMINAL DEFENDANT CHRISTOPHER WHITE PETER MILNE THE NOMINAL DEFENDANT JUDGMENT - KIEFEL I No. 2115 of 1986 No. 2116 of 1986 Plaintiff Defendant Third Party Plaintiff Defendant Third Party JUDGMENT DELIVERED: 5th November 1993 CATCHWORDS: Issue Estoppel - Negligence - Collision between car and unidentified vehicle - Action by passenger in car against driver of car - Nominal Defendant third party - judgment for plaintiff against Nominal Defendant in District Court Action - Subsequent action against car driver by two other passengers - Nominal Defendant third party - Whether defendants bound in subsequent action by previous judgment in earlier action - Issue Estoppel. Negligence - Personal Injuries - Car accident - Quantum and liability. ~ -- 3 of 31 -- '. ' REPRESENTATION: HEARING DATES: Mr R. Myers for both plaintiffs Mr D. North for the defendant Mr K. Wilson for the third party 19th, 20th, 21st and 22nd July 1993 -- 4 of 31 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane [Brewster v. Milne] [White v. Milne] BETWEEN: BETWEEN: JOHN STURGEON BREWSTER PETER MILNE THE NOMINAL DEFENDANT CHRISTOPHER WHITE PETER MILNE THE NOMINAL DEFENDANT JUDGMENT - KIEFEL I Delivered the 5th day of November 1993 No. 2115 of 1986 Plaintiff Defendant Third Party No. 2116 of 1986 Plaintiff Defendant Third Party In these actions, which were tried together, each of the plaintiffs in a motor- vehicle driven by the defendant Milne sustained injuries as a result of that vehicle leaving the roadway, its progress being halted only by a drain or ditch. The incident occurred on 4th May 1978. The defendant has joined the Nominal Defendant as a ' ' ' -- 5 of 31 -- 2 third party in each action, alleging that the cause of the incident was the actions of the driver of an unidentified vehicle. In the reply to the defence of the third party the defendant pleads that the Nominal Defendant is estopped from alleging that the accident was caused by any negligence on the part of the defendant, that issue having been determined on 26th June 1985 in an action in the District Court brought by another passenger in the vehicle driven by Mr Milne, a Ms Rehberg. An estoppel was also raised on the pleadings against the plaintiffs but not pressed. Issue Estoppel In the District Court proceedings the plaintiff sued both the Nominal Defendant (as first defendant) and Milne (as second defendant) and the owner of Milne's vehicle. The first and second defendants alleged that the incident was caused by the manner in which the other had managed and controlled their vehicle and the Nominal Defendant at least issued. a notice claiming indemnity or contribution against the second and third defendants. Broad DCJ. gave judgment for the plaintiff against the Nominal Defendant alone. Whilst neither the terms of the judgment nor the reasons express a determination on the third party proceedings, His Honour ordered the Nominal Defendant to pay not only the plaintiff's costs but also the costs of the other defendants. In his reasons His Honour accepted Milne's evidence and continued: "I find the cause of the accident, and of the injuries sustained by the plaintiff, was the negligence of the driver of an unidentified motor vehicle ... " -- 6 of 31 -- 3 and then went on to find the aspects of that driver's conduct considered to be " negligent. It seems clear to me that His Honour found that the driver of the unidentified vehicle was the cause of the incident and the defendant Milne was not. With respect to the present actions the driver Milne has raised against each of the plaintiffs issues of contributory negligence in failing to wear seat-belts provided (although by the conclusion of the hearing there was no evidence as to this). The prospect of re-litigating the question of responsibility for the incident between the two drivers, on what must have been on the first occasion available evidence, is undesirable. However the question for me is whether the authorities permit ~nd indeed require that course to be followed. In Jackson v. Goldsmith (1950) 81 C.L.R. 446 there was held not be an identity of issue in the two proceedings. In the District Court action Goldsmith had sued jackson and the question of Goldsmith's contributory negligence was raised. In the Supreme Court White (J ackson 's pillion passenger) sued J ackson who then joined Goldsmith, claiming contribution or indemnity. The questions identified in the proceedings were regarded as relating to duties owed, different duties in the sense that they owed to different persons (see per Latham CJ. at 445, 456, McTiernan J. 461 and Williams J. 463). McTiernan J. added (461) that the liability of Goldsmith to White was not in any event the "groundwork" of the decision in the District Court. The question as to which tortfeasor is responsible in fact for the incident has here been previously distinctly raised and determined without contribution by the other. Whilst the plaintiffs are different, each of them and the plaintiff in the District Court were passengers in the same vehicle. Subject to the question of· contributory negligence here (in the sense of a plaintiff's failure to take care for his -- 7 of 31 -- 4 own safety) it is possible that the duty of care owed by each of the drivers will be the same. Mr North, for the defendant, submitted that in that sense they could be regarded as a "class" of persons to whom an identical duty was owed. In Edwards v. Joyce (1954) V.L.R. 216 however, these questions were raised. In the first action a passenger sued J and W and a verdict apportioned responsibility between them. E, also a passenger, then later sued J (being out of time to join W) and J joined W as third party. Whilst a distinguishing feature was of course the fact of apportionment in the first decision, this was not the sole. basis of the Court's decision. Sholl J. held that J (and his employers) were not estopped from asserting the contrary of the previous determination. It was conceded, for the purpose of the argument on the point of law (221) that the present plaintiffs were in the same position as the former plaintiff and then argued (221) that although the duty of care owed was similar, it was not the same. His Honour viewed Jackson v. Goldsmith (supra) as determining that where one issue related to the alleged breach of a duty owed to one and the other to an alleged breach of duty owed to another, they are not identical issues capable of being made the basis of an issue of estoppel. Jackson v. Goldsmith, in His Honour's view (227-8) prevented one viewing the duties as one single duty. Edwards v. I oyce (supra) was approved by Barwick CJ. in Rams ay v. Pigram (1967) 118 C.L.R. 271, 278. His Honour considered that the decision accorded with the principles expressed in Jackson v. Goldsmith as distinct from cases such as Marginson v. Blackburn Borough Council (1939) 2 K.B. 426 (which His Honour disapproved). His Honour stressed the element of duty as the essential consideration of what was the "issue" (which one might compare with Marginson's case which on -- 8 of 31 -- 5 one view permitted an estoppel to operate on a narrower basis, that is to say with respect to factual findings essential to the two actions). His Honour said (278): "Thus, though the act in question be the same in each case and, if you will, though I think it not to matter, the evidence establishing it be the same, the issues raised in each case are not, upon a proper analysis, identical. In the District Court what was involved in the defence contributory negligence was, inter alia, the police-officer's personal duty towards the respondent. In this action it is a breach of the · Government's duty towards the respondent which is alleged. For lack of the necessary identity in the issues, -the appellant's plea in this action, in my opinion, was demurrable." (and see also Windeyer J. at 291). In Bollen v. Hickson (supra) it was not necessary for the Full Court to consid~r the effect of the remarks in Ramsey v. Pigram nor whether Marginson's case is reconcilable with Jackson v. Goldsmith (see 252). That case involved a second action between the same persons where only the nature of the damages claimed differed. It was in that background that the majority determined that the issue of who was responsible (in circumstances where even the particulars of negligence were the same) could not be re-litigated. Williams j. in Jackson v. Goldsmith (461) had indeed said (as the Court noted in Bollen v. Nickson) that J ackson would have been estopped if he had later broug~t action against Goldsmith. The Full Court did not however otherwise suggest that a view different from that already expressed in the cases ought be taken of Jackson v. Goldsmith. In the majority's view the basis of Jackson v. Goldsmith was that different bre~ches of duty were involved (254) and pointed out (255) that in motor vehicle cases arising out of the one accident the breach of duty is often not the same. The consistent adoption of the duty owed by _a particular person to an . . - individual as providing _an essential quality to the question or issue said to have been -- 9 of 31 -- 6 determined, and of the Courts' insistence that such an approach accords with Jackson v. Goldsmith (supra) obliges me, I consider, to apply the notion that when a · determination of fact relates to the issue of duty (as it does in the question of a breach of it) it cannot be the same where different duties are owed to individual plaintiffs. There is no shortage of authority, in addition to Edwards v. Joyce (supra), for the view that although a similar duty is owed to persons in the same position, such as passengers, the duty is not considered to be identical: see Cook v. Cook(1986) 162 C.L.R. 376, 382 and 383; Hood v. Commonwealth of Australia (1968) V.R. 619, 625; Lobsey v. Care (1983) 1 M.V.R. 1, 11 and Kinsey v. Gnech (1985) 2 M.V.R. 331, 332. I have considered whether there might be a distinction in circumstances where it is in fact found that the duty is identical, but that would seem to involve utilising a· final determination on facts to what is essentially a threshold and proc'edural question. Another view of the principles expressed by Dixon J. in Blair v. Curran (1939) 62 C.L.R. 464, 532-3 is to hold a party estopped in relation to a finding of fact where it was a fact critical or necessary to the first judgment and indispensable to the later action, and not to limit the notion of an "issue" to elements of the cause of action. Dixon J. (532) said, referring to the decision in R v. Inhabitants of the Township of Hartigan, Middle Quarter (1855) 4 E. & B. 780, 794 [119 E.R. 288, 293] that a judicial determination concludes: ". . . not merely as to a matter which it is necessary to· decide and which was actually decided as the groundwork of the decision itself, though not then directly the point at issue.· Matters cardinal to the latter claim or contention cannot be raised if to ·raise them is necessarily to assert that the former decision was erroneous.i' -- 10 of 31 -- 7 It seems however that following decisions have considered the references following (on 532) to the "legal. quality of the fact" and to "ultimate facts forming the very title to rights" as requiring more than that the determination of the fact be necessary to each action. But the view I have expressed reflects the minority view in I ackson v. Goldsmith (see per Full agar J. at 468) and in Grant v. Gorrell (1968) 2 N.S.W.R. 206 (per Holmes JA) and I am doing no more perhaps than reiterating the question raised by commentators, namely that if the essence of estoppel is that one should not be in a position to urge the contrary of that already found against one its application has perhaps become unduly restricted. That may be because it necessarily has regard to the technical and procedural aspects of the action itself and the courts have not as yet imported into questions relating to issue estoppel considerations of policy. As I have indicated, however, I consider I am constrained by authority to hold that the third party is not estopped from raising a contrary view of the responsibility of Milne for the accident. In the result, I have been unable to come to the same view as to culpability as did His Honour in the action in the District Court. Liability Both plaintiffs toured with the group "Dragon". The tour of Queensland had, prior to the accident, taken in western towns prior to the tour moving north. Mr White and Ms Rehberg said that they had then had a three or four-day break on Magnetic Island. The tour then proceeded to Home Hill on Ms Rehberg's evidence, back to Cairns and then stopped at coastal towns from Townsville on towards the south. Apart from the break they had on Magnetic Island she thinks they may have had a one-day break in Cairns. -- 11 of 31 -- 8 Apart from these breaks the daily routine of the tour appeared fairly onerous. They were working five. or six days per week when on tour. Sometimes they would do a series of "overnighters" when, at the conclusion of a show they would pack up and travel direct to the next town, catch some sleep in the morning and then set up for the next show. It is not clear how many nights prior to the performance in Hervey Bay they had worked since Townsville. It does however seem from Ms Rehberg's evidence that they had likely stayed over at a town the night before, travelled in the morning and arrived at Hervey Bay during the day. They had unpacked the equipment, set it up for a performance and the show had concluded on most of the evidence at between about 1 and 2 a.m. (Mr White places it somewhat later). Night driving was shared between the occupants to the hire car, a station- wagon. Whoever felt most awake would drive, Mr White said. The rest ·or the occupants of the vehicle would catch lip on their sleep. Mr Brewster said he felt very tired in the evening and he, Ms Rehberg and Mr Milne sat in the back of the vehicle and slept after the journey commenced. Mr White was the first driver, a Mr Grant being seated in the passenger seat next to him. Mr Milne however suggested that he was feeling "quite refreshed" as they left. He agreed however that after the show he usually needed to "wind down". I take it that the activity of the show kept people necessarily fairly alert at least until it concluded. As with all the others, he fell asleep when it drove off, although he suggested this was because of his foresight, that is to say that he took the opportunity offered because he knew he would probably be called upon to drive later in the journey. -- 12 of 31 -- 9 After a few· hours Mr White felt fatigue and pulled into an- all-night petrol station. He says he tried ·to wake the others but that Mr Milne was the only one that did in fact wake. Mr Milne says he was woken by the car pulling up and he took over driving. It is clear that at about 5 or 5.30 a.m. the car left the roadway proceeding across the roadway to the other side then down an embankment and through some scrub, bumping into a concrete structure and coming to rest where about six inches of water was lying in a· channel or ditch. None of the passengers was apparently aware of anything until either a bump or some impact was felt. Ms Rehberg appears to have been the first to feel the bump and notice that they were off the roadway. Mr White's first recollection was lying with his face down in the water. Mr Brewster said that following the accident he noticed Mr White's predicament and assisted him to sit up or prop him up on the back wheel of the motor vehicle. In the process he realised that his back was hurt and fell onto the back seat and was immobilised there. He remained lying in that position. This was not challenged. What was very much in issue was whether or not another vehicle was involved. Mr Milne gave evidence that the roadway was wet. There had been some light rain on and off though not at the time of the accident itself. It was quite dark. Mr Milne's version was that another vehicle approached his vehicle with its lights on high beam. He flashed his lights in an attempt to have the other vehicle lower its beam. He had that car under observation for some time, but was not concerned about the potential for an accident until it was quite close. He was conscious that his vehicle was overloaded and took his foot off the accelerator rather than reducing· speed by directly braking. ·When it was very close he realised that the other vehicle -- 13 of 31 -- 10 · was on the wrong side of the roadway. He says he then took evasive action. He veered to the right onto the incorrect side of the roadway to avoid it. The manoeuvre he described as a veering to the right, no more than forty-five degrees but that it was a fairly violent movement. He had the opportunity to observe the other correct its path to an extent and come back onto its side of the roadway, so he kept veering to the right. He says when he left the roadway his vehicle was in a lateral, sliding movement. Ms Rehberg however- was awoken by a bump. At that time the car was off the road and was travelling on her version straight a.head through the bush and scrub. She did not see another vehicle, but of course it may have passed by then. Mr Milne had an impressive if not remarkable recollection of the events.· He was able not only to recount step by step the events leading to his car leaving the roadway but also his thoughts and reactions as a driver. Prior to the accident Ms Rehberg had awoken and observed Mr Milne "dozing off" with his head -dropping to his chest. She kept him under observation, thought he was recovered and she fell asleep again. He quite strenuously denied that he was tired and as I have indicated gave evidence to the contrary that he was "quite refreshed" at the time they set off and felt quite alert when at the petrol station. It was not however suggested to Ms Rehberg that she was mistaken about this event. It is . difficult I think to square this observation of him with his suggestion that he was unaffected by tiredness and indeed "refreshed". It was suggested that I could deduce what occurred by the inanner in which the vehicle left the roadway. Certainly there is· probably not correlation between the evidence of Ms Rehberg and Mr Milne as. to this. Perhaps more interestingly the -- 14 of 31 -- 11 violent swerving motion which is said to have occurred because of the oncoming car does not seem to have had any effect on the occupants. No-one stirred. It is however speculation to attempt to draw an inference just from the evidence of how the car left the roadway and the fact that no-one awoke. There are however other features of the evidence which are I think of greater assistance. Prior to the cross-examination of Mr Milne both plaintiffs had given evidence of a .conversation with him in Sydney some twelve or eighteen months following the accident.· Mr Brewster said he and Mr White together spoke to Mr Milne at which time Mr Milne said that he had been concerned at the time of the accident that he was too young to be driving (in the context of hire-car insurance) and that he was concerned that liability would attach to his parents. He said he had fallen asleep and driven off the road. Mr Brewster was perhaps unclear as to where the conversation actually occurred when tested in cross-examination. Mr White however clearly placed .the conversation at the night-club called Bondi Life Saver and on a verandah leading to a beer-garden. According to him Mr Milne asked him (White) about his recovery. He believes he then asked Milne, "What happened?" and Mr Milne r:eplied that he had fallen asleep and was scared as he was concerned about the qu~sti~n of the insurance. _Mr Milne however denies a conversation to that effect taking place and indeed denies that. he saw Brewster and White together in Sydney. It is clear however that they were b.oth in Sydney at the time, one having concluded work for a particular band whilst the other took over with the band. Mr Milne said that he ca~e across Mr Brewster alone at which time Brewster asserted to him, rather antagonistically, that he had fallen asleep and that he, Milne, had denied that· accusation. In his evidenc~,...in-chief Mr Milne said the first time he saw Mr White -- 15 of 31 -- 12 following the- accident was in Perth at which time nothing was said about the accident. This was not suggested to Mr White and he was not sought to be recalled. That was not however the only new feature that was introduced in the evidence of Mr Milne. It is not entirely clear to me why Mr Brewster had an interest in asserting one view of the events. At this time neither he nor Mr White had issued proceedings, although it is possible that he had heard that Milne was saying· that another vehicle was involved and perhaps simply did not believe this. No-one suggested that Mr White however knew of this different version. On the other hand it is quite understandable that if he saw Mr Milne in Sydney he would have liked to have known what occurred since he was left at the hospital in Nambour whilst the tour proceeded on. He said that he had not discussed the matter with Mr Brewster although he lived with him for some time. Whilst this does seem a little odd, the answer to it may be found in his recall. A recollection of what Mr Brewster had ever told him about what he understood of the accident may not have been as significant as that conveyed to him by the driver Milne. In cross-examination it was suggested to Mr Milne that if another driver had been to blame it would have been understandable and indeed highly likely that he would attempt to convey his blamelessness to those injured, particularly Mr White who was quite badly injured. He explained that Mr White was in pain when he saw him after the accident at the Nambour Hospital. In these circumstances it is understandable that he may not' have entered into a discussion about the cause of the accident. He did not suggest that he spoke to Mr Brewster about it in the few days·. following the accident when Mr Brewster continued on with the tour. What he did· -- 16 of 31 -- 13 however raise for the first time was that he told not only Mr Brewster but also Ms Rehberg and Mr Grant what had in fact occurred. He said this occurred at the scene of the accident itself. This was not suggested even faintly to Mr Brewster nor Ms Rehberg. Whilst I might accept that Mr Milne was not present on the first day of the trial, cross-examination of Mr White and Ms Rehberg did not take place until the second day. It was suggested in re-examination of Mr Milne that no-one had distinctly raised this conversation with him prior to cross-examination. But I find it extraordinary that having been informed that Mr Brewster and Mr White were asserting an admission as to how the accident occurred (as he must have been} that he did not draw to the attention of his or the insurer's legal representatives the fact of this very important conversation. Mr Milne went further. He said that he recalled that the conversation occurred· at the front of the vehicle where all were present. Mr White was lying over the bonnet of the vehicle. He, Milne, and Mr Grant he thought had helped Mr White from the vehicle. Although he was not absolutely clear about the latter, he must have had a recollection about Mr White's position on the bonnet of the vehicle. Mr White of course had said that his clear recollection (and one would think he .might remember this) was waking and finding himself with his face in the water and that John Brewster rolled him over and out of the water on his back. Mr Brewster has him placed at the rear of the vehicle. No-one suggested to them that this was incorrect. This evidence tends to reinforce my earlier doubts about the evidence of Mr Milne. The precision of his recollection and the manner in which he gave his· evidence suggested reconstruction, rather than true recollection. In the background -- 17 of 31 -- 14 of the hours that the people involved in the tour had been working, even if they had slept the night before, it was almost dawn at the time of the accident and it is not too difficult to draw the inference that, like all the others, he was tired. I do not accept that another vehicle contributed to the accident. In the result I find the defendant has breached his duty of care to the plaintiffs in permitting the vehicle to leave the roadway and failing to keep it under his control. He was concerned about his position concerning the insurance and it 'ts unfortunate that he was placed in that position. The result is I consider that he has added the other motor vehicle to the story. I accept the evidence of Mr White and, it follows, Mr Brewster, concerning the admission made in Sydney. I found Mr White to be a direct and straight-forward witness. Mr Brewster's evidence was not always clear. Statements he made were not always properly explained or placed in context, although I do not suggest that he- is not to be believed. He did say that they had all been given a story by Milne (about the other vehicle) but in re-examination he seemed to place this as a second-hand account and the time at which it was conveyed to him vis-a-vis the admission in Sydney was not clear. If he had been told about the other vehicle without the admission having been made, it is however strikingly odd that he has obviously instructed his solicitors in such a way that no question arose as to joining the Nominal Defendant. There was no reason for either he or Mr White not to name the Nominal Defendant as a party if they had had the information that Mr Milne suggests. It was suggested that I ought to draw an inference adverse to the plaintiffs because their pleading does -not particularise the . fact that Milne fell asleep. At worst for them I think the pleading is equivocal, although I tend to the view that a pleader might consider that the relevant (act is that the car left the roadway. The fact that sleep caused that to occur perhaps only assumes greater importance where some other defence is raised. Perhaps in this -- 18 of 31 -- 15 respect it ought to have been included in a reply, but replies are under-utilised in personal injury actions. Quantum The Plaintiff Brewster This plaintiff was aged 25 years at the date of the accident. Apart from undertaking part of an apprenticeship he had worked with rock groups since 1970, commencing as a stage manager and progressing to the position of production manager. In those days that involved some heavy work, lifting heavy equipment and the like. At the date of the accident he earned $400 per week gross though prior to that time the range had been between $250 and $400. He had been in work reasonably continuously. Following the accident he was taken to the Nambour Hospital where he received an injection for the pain he was experiencing in his lower back. No X-rays were taken. He was discharged and travelled by the tour bus to the Gold Coast. A plywood bed was made up for him on the bus since he could not sit up. The next day he could not move without assistance and was taken for medical treatment and X- rays were taken. It appears from the medical reports that a Dr Adsett attended him on the 5th May and that he later saw Or Cartmell in Tamworth on lOth May. At that time he noted pain over the sixth and eleventh thoracic vertebrae and gave him some pain-killing tablets. The plaintiff saw a specialist in Sydney who prescribed treatment by brace. He was still undergoing this treatment when he saw Dr Dickens when he returned to Melbourne and in August 1978. He diagnosed minor crushed fractures of 06 and 11. ·. The fracture had then consolidated and he thought there would be a full recovery -- 19 of 31 -- 16 without residual disability. He later complained to Dr Buzzard in November 1982 of pain in cold weather and if he slept in an awkward position. That doctor also .said it was likely that he had had a minor head injury in the accident but from which he had recovered completely. He attributed the continuing symptoms in the back to the injury but thought there would be no significant problems arising and that it would be appropriate to allow six months for an inability to work. On 30th May 1984 he considered that the plaintiff was capable of unlimited work. To similar effect was the report of Mr Boyd Leigh in 1986. Mr Stephens was earlier of the view that the fractures themselves were not important and looked rather to the soft tissue injury. He thought that that would produce the odd "twinge" in the future. In his last report however of 28th May 1992 he thought that after fourteen years the plaintiff could be considered as having residual chronic low back strain as a result of the soft tissue injuries, that this would continue to produce discomfort from time to time. It could be reflected in a description of small impairment of the spine but more importantly he was of the view that he ought to avoid occupations involving bending or lifting in excess of ten kilograms. The condition was stable. This report, as with the others, was admitted by consent. Mr Brewster no doubt suffered quite severe pain and. discomfort in the early period. He was quite restricted in his movement and his ability to care for himself and relied upon others in the early months. He returned to work late in January 1979 as a sound engineer. This position fortunately did not involve the use of his back. He obtained work with some other bands after that period. He experienced difficulty but continued working for a few years. During this time he says he earned -- 20 of 31 -- 17 between $50-$100 per week less, but it must be noted that he also gave evidence of a range of income prior to the accident and later referred to the difference of income received from different bands depending upon their particular status and their budget. He says that there has been no change in his back condition since· that time. Between late 1981 and 1985 he did not work at all. One of the medical reports refers to him as resident on a farm. He attributes this to a feeling of low self-esteem and an associated drug problem he was dealing with then. From 1985 he toured with some bands earning between $300 and $350 per week. In this respect he said his income depended on the budget the band was working on. He was not in continuous employment although the gaps between employment are not at all clear. He was unable to lift and I infer that this to some extent limited the work available to him. He branched out in range of occupations in late 1985, early 1986 starting as a delivery driver with an industrial laundry service and progressing to the position of transport supervisor earning $1600 per month net, after tax. He remained in that position for eighteen months. He did not say why he left it although it may be that he decided to return to the industry he had been in for quite some time and in which no doubt he felt skilled. From mid 1987 he worked for an association called Building Bridges from which he received some lump sums for the shows that were performed, and he worked for a few bands. Or Brewster said that the music industry improved in terms of the physical requirements of people like sound engineers and that at present as a sound engineer he was able to carry out the work and that the disadvantage he suffered was his -- 21 of 31 -- 18 inability to stand for a long time. That is to say he was not suggesting that he could not do the work but that it causes him· discomfort. The level of pain has been the same for some fourteen years. He is able to play part of a game of a squash and he plays golf. It is clear that he suffered loss of income attributable to the accident between the date of the accident to late January 1979 (34 weeks) and I would allow a sum based upon the net rate referred to in the statement of loss and damage (which figure was confirmed by the defendants' calculations) at $309 per week. From that time the level of pain and disability stabilised. The disadvantage or disability was in being unable to lift and the particulars of loss consistently included a claim based upon a general disadvantage in the marketplace. It is difficult to say at what point in the music industry it developed to a stage where heavy manual work including lifting was no longer required, though the indications are it was some time in the mid to late 1980's. Another difficulty in the period from 1985 to trial is the extent to which that disadvantage was productive of loss. It is not capable of a precise calculation. I am not prepared to use the plaintiff's general figure for that purpose since that basis for it seems entirely unclear. I can on the evidence allow .only something to reflect a limit to the range of types of work that were available to him for a period, and taking into account that he was able to earn a relatively good company wage if he chose in the cleaning company. Interest on that. figure needs to reflect that the losses occurred over a period of time. The plaintiff is presently 40 years of age.· Again a calculation of future economic loss by reason of positions which might otherwise be open to him if he· were able to bend or lift are. not capable of calculation with any precision. . The -- 22 of 31 -- 19 award for pain and suffering takes into account the discomfort he will suffer in being required to stand should he pursue his present occupation. It has not been suggested as likely that he would engage in other occupations and indeed those requiring lifting or bending, but of course if the need arose he would be limited in his options and the award must attempt to reflect this. As to the question of interest to date of trial, Mr Myers has furnished me with details of unreported decisions on the question as to whether, in a case of substantia] delay, interest should be allowed for the full period from date of injury. The preponderance of views favours that approach and it seems correct in principle that when a defendant cannot be shown to have suffered prejudice by delay a plaintiff ought to be permitted full recovery. The sums for special damages and for a Griffith v. Kirkemeyer component have been agreed. No interest is appropriate with respect to them since in the first place the insurer has paid the sums and in the second no payment was made to the provider. The award of damages referable to this plaintiff is then made up as follows: Pain and suffering Interest on one half of that at 2 per cent for 15 years Past economic loss Interest on $20,306 ($25,000 Workers Compensation payment of $4693.46) at 6 percent for 8 years Future economic loss Special damages $22,000.00 3,300.00 25,000.00 9,747.00 10,000.00 327.45 ' . -- 23 of 31 -- Griffith v. Kirkemeyer Total: Quantum The Plaintiff, White 20 630.00 . $71,104.45 This plaintiff was 26 years of age at the date of the accident. There was no dispute about the fact of his injury nor that it was of some severity. The real issue centred upon the assessment of what economic loss he has suffered, the question being made more complex by the nature of the industry within which he worked and the difficulty of assessing what levels he may have achieved within it. Mr White was educated to leaving certificate. He obtained his audio engineer's certificate from the School of Audio Engineering in Sydney and thereafter worked with bands from the age of 17 (1969). He was then, as the witnesses say, in a key position in what was then a fledgling industry. As he explains it he was there "on the spot" as the technology was invented and the industry developed. Technology was developing at a fast rate with respect to concert bands at that time. Similarly one's reputation developed quickly and could be lost with as much speed if the continuity of employment was broken. At the time of the accident the plaintiff was engaged as a "fold back" or monitor engineer. This task involved no doubt a high level of accurate audio perception and was technically quite complex. It involved mixing music to the requirements of each individual musician. He had, according to the evidence of the witnesses Atkinson, Blackmore and Chase, developed a good reputation and indeed was one of only a few people who were at the forefront of this field. He had worked -- 24 of 31 -- 21 with a well known female vocalist for two years prior to the accident and had toured in South East Asia. Following the accident he was in severe pain. He say~ he was laps,ing in and out of consciousness prior to being taken to the hospital (although.any head injury of significance -is not adverted to in the reports). One tooth and one half of another had been broken off and he sustained lacerations to the scalp and some injury to his nose. He was conscious on admission to the Nambour Hospital where X-rays revealed an unstable crush fracture of Ll. He was transferred to Prince Charles Hospital where he says he initially received traction. He was then placed in a body- cast (from the neck to past the hips) and was then bed-ridden for two weeks. At his request he was discharged so that he might return to Melbourne into the care of his mother. She did so for some six months and her assistance extended to assisting him to sit, lie down, attend to his toileting needs, bathing and other daily needs. A figure for this care has been agreed. Mr White says that he then remained in the cast for six. to eight weeks. Mr Dickens then recommended treatment by brace and the fracture was noted as consolidated by. August 1978. He recommended that the plaintiff gradually ease himself out of the use of the brace. Mr White says that he remained in it for some twelve months. Whilst he was required to wear the brace he found difficulty in sitting for perio_ds of time and in bending. At no time was he free from pain in this period, alt~ough the level of it varied._. Following medical adyice he exercised by swimming -- 25 of 31 -- .. 22 and this improved his condition. I should at this point that the plaintiff gave no impression of exaggeration in his evidence with respect to any topic. Eventually the doctor recommended he attempt to return to light duties. As there was no such work in his field he attempted to deliver posters for three or four weeks at about $100 per week. Towards the end of 1979, or more correctly perhaps early 1980, he attempted to work with the band 'Rose Tattoo' who were performing in Melbourne and then in Sydney, for $200 per week. The journey between the cities however aggravated his injury and he resigned whilst in Sydney. At that point a friend in Perth, hearing of his predicament, invited him to come to Perth and sell musical instruments from a shop. He did so during 1980. He then obtained employment with the ABC and remained in that employment for approximately seven years. He left for twelve months when he decided to try to establish himself in his own business but it was not successful and he returned. He has remained with the ABC for the last four years although his status is now only that of a temporary employee. Schedules of his earnings to date have been provided. He now earns in the order of $500 net per week average (he earns differing rates over the year because of shift work). He, like Mr Brewster, received Workers' Compensation - in his case the sum of $4433.44 - but again I am told that that is not to be deducted from his past economic loss but taken into account only with respect to the calculation of interest. Mr White considers his injury has been stable for the last thirteen years. Medical reports and X-rays confirm a compound fracture of L1 with mild scoliosis convex to the right. Consistent with the injury, the disc spaces above and below the vertebrae were deformed. The doctors described the injury as a moderately severe -- 26 of 31 -- 23 .• one and say that he ~ould expect mild disability from normal activity. He is required to avoid heavy work, bending or lifting. He will suffer back-ache with heavy or awkward activity. For instance he will suffer it if he gardens for half a day, and is prone to it in cold weather. The reports do not however suggest that he is likely to develop degenerative changes. The most recent X-rays disclose a minor degenerative lipping, but this has not been related to the injuries resulting from the accident. The plaintiff says that he experiences discomfort if he sits for any lengthy period or if has to bend. He has experienced a "tightening up" in his lower back. His discomfort is such that he prefers to lie rather than sit when relaxing at home. His job with the ABC fortunately involves him with intermittent sitting and standing which is an ideal employment situation according to the doctors. There was some evidence about budget cuts affecting the ABC, but it is really left on far too speculative a basis. In any event, the correct approach to economic loss seems to be to compare what he might have earned if not injured with what he is capable of earning, not what might occur to him through budgetary considerations not '?f the defendant's making. Mr White had planned to stay in the rock concert industry. He believes he would have been at the top of his field and even with those now working in the U.S.A. with top acts. The figure he suggested for engineers in his field at current earnings was in the order of $1000.- $1500 per week . . I The other witnesses having knowledge of this industry spoke in glowing terms of his ability. Mr Atkinson described his reputation as being "the best" (as a fold- back engineer). Mr Blac_kmore, who has consider_able experience, gave evidence that the best concert sound engineers in Australia earn $1500 per week when they were -- 27 of 31 -- .. .. • 24 not touring and $3800 per week with allowances when they were. Unfortunately it. was not explained to me how often they in fact tour on average per year. One particular engineer who works between Australia and the United States earns $5000 when not touring and $15,000 on tour. That figure may be somewhat less with respect to a monitor engineer. There are however only a few out of the hundreds of sound engineers in Australia who are at the top of their field. Not all are highly talented and the evidence was that they operate .at different levels, earning as low as $200 per week and then not working consistently. In view of the reputation Mr White had already established, it does not seem to me to be too speculative to take into account the chance that he would have reached the top of his field in Australia, and then to adjust the award to reflect the degree of probability: see Malek v. J.C. Hutton (1990) 169 C.L.R. 638, 643. This should be taken into account unless the likelihood is so low as to be speculative. From the particular position that he was in at the time of the accid~nt and with the reputation he has gained I consider that the p'robability that he would have reached the upper echelons of his field in Australia were quite high, that is to say I would not discount to any great extent for this. I was however left quite uncertain about whether "superstar" status could be regarded as a real possibility and iri the end considered that it was too speculative. On the evidence I had little criteria to· assess it from. Clearly, it requires a high level of skill and of a reputation. But given the very few numbers of people who have reached this level, including the pool of obviously very highly talented people at the upper levels of the sound field in Australia, there must be other factors such as some particular and distinct ability or the good fortune to be in a position when an opportunity arose. -- 28 of 31 -- 25 Mention was also made of the fact that there have been some people who were once regarded as at the top of this field but who have disappeared from the scene. No reasons were known as to why this_ had taken place except in the case of one who was regarded as unreliable. However nothing in the plaintiff's past suggests any likelihood that he would not have achieved highly in his career in Australia. He was, on the evidence, a very reliable person and certainly impressed me as such. It was also suggested that there was a possibility that he could have attempted to return to work, working his way back up to the position he had held. The evidence was certainly to the effect that if one left the industry it is very difficult to return. 1'-here are many people to take one's place. One witness, however, said that if someone had been absent for nine months or so that it was possible to start at a lower level and retljrn to the original position, the net effect being lo?ing a few years at the higher level. That did not however take account of the fact that he would be returning as a person with a back injury unable to carry out all of the work required. It was also suggested that he could have moved to eastern Australia where the music industry is principally based, for instance to the recording studios. Here the plaintiff himself however said that whilst similar skills are involved, opportunities to enter this field as distinct from concert work are very limited. Whilst the witness Chas~ did say that an engineer who was experienced in concert work may have an advantage in entering this field, I am not satisfied that any discounting should be made on the basis that he could in the past or now successfully have made the transition. ; .. -- 29 of 31 -- ' .. 26 With respect to economic loss at present, allowing for potential present earnings. at $1500 per week, which I take to be a gross figure on Mr Atkinson's evidence, and allowing something in the order of say two months for touring time ($2300 per week in addition) an amount of $84,400 is reflected. That needs to be discounted to take account of taxation which I have allowed to $42,000, $807 per week net. His present weekly loss is then $307.00. I propose to discount for contingencies on the total sums. In relation to past economic loss, the plaintiff earned little for about 18 . months. I have allowed $309.00 net per week for 86 weeks. From 1980, the only evidence of income rises from $400 per week gross ($309 per week net) to the present rates was that there was a steady increase. In those circumstances I have allowed for a rate of $650 per week over 13.5 years. In fact the plaintiff earned $234,313 net, although that includes a year when his earnings were less whilst he attempted his own business. After discounting for contingencies I allow $210,000. With respect to future economic loss I allow that at $307 per week to age 60 (19 years) on the five per cent tables, which reflects a figure of $198,322. I have discounted this by 15 per cent to reflect probabilities and contingencies. The award with respect to this plaintiff is then made up as follows: Pain and suffering Interest on two thirds thereof at 2% for 15 years Past economic loss Interest on $205,566 ($210,000 less workers compensation payment of $4433.44) at 6 per cent for 8 years Future economic loss $ 45,000 $ 9,000 $ 210,000 $ 98,672 $ 168,574 -- 30 of 31 -- Special damages (agreed) Interest on $1904.40 thereof at 6 per cent for 8 years Past Griffith v. Kirkemeyer Future dental expenses (agreed) 27 $ 2,428 $ 914 $ 1,470 $ 1,000 $ 537,058 In Action 2115 of 1986 there will be judgment for the plaintiff Mr Brewster against the defendant in the sum of $71,104.45. In Action 2116 of 1986 there will be judgment for the plaintiff Mr White against the defendant in the sum of $537,058.00. In each action I propose to order that the defendant pay each of the plaintiff's costs of the action to be taxed. In relation to the third party proceedings, I give judgment in each action for the third party and I propose to order that the defendant pay the third party's costs in the proceedings to be taxed. -- 31 of 31 --