Blakeney v Scheuler [1993] QSC 235 (1993)18 M.V.R. 221

State Reporting Bureau TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION REVISED COPiES ISSUED State Reporting Bureau Date ('1 THOMAS J No 3863 of 1987 () JAMES JOHN BLAKENEY and ADELGUNDE WILHELMINA SCHEULEN and SUNCORP INSURANCE AND FINANCE 0 BRISBANE 0 .. DATE 24/08/93 JUDGMENT 1 Plaintiff Defendant Defendant by Election 4th Floor, The Law Courts, GeorKe Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07} 227 5532 . -- 1 of 25 -- •.'I .. ··. 240893 HIS HONOUR: There will be judgment for the plaintiff for $433, 109. 85. I publ·ish my reasons·•. The reasons are based ~pon a finding of 15 per cent contributory negligence and a total quantum of $509,541. HIS HONOUR: Two issues have been raised on the question_of costs. My views have been expressed in the course of argument. I shal~, therefore, rule quite briefly. Order 26 rule 2, in my opinion, is intended to encourage parties to settle act.ions, particularly act.ions of . this kind. I reject the submission that the "offer to settle" dated 16 April 1992 sent on behalf of theplaintiff (ioes not amount to an offer to settle-within the meaning-of that rule. It is a necessary implication of the offer that the plaintiff was willing to settle the whole action for a total. of $282,073.42. This is clear enough from the terms of 'the offer to settle itself even though some mathematical processes needed to.be conducted before that result emerged ..... The covering letter makes it even more clear. I interpret the additional paragraphs in the offer .to settle as not destroying the overall-offer and, indeed, as opening the way to possible settlement of issues if the defendant 2 JUDGMENT 10 20 (\ ( 30 ( ) " . 40 l) 50 60 -- 2 of 25 -- 240893 was not minded to·· settle the· whole action on the terms offered. However ·it seems that the defendant was not interested in pursuing the possibility of settling the quantum of the particular heads of damage either. As Order 26 rule 2 applies,· rule 9 makes it appropriate to ·order that the defendant by election pay the plaintiff's costs of the action fixed on a solicitor and client basis, and I shall so order. One of the issues in the action concerned .the level of blood alcohol in the deceased driver. The defendant succeeded in this issue. Forensically it was perfectly proper for defence counsel to put the plaintiff to proof upon .this 10 20 issue which included the level of alcohol in the urine also. 30 However, a notice to admit under Order 36 rule 2 was served on behalf of the defendant by election on 4 August 1993. No 0 admission was forthcoming. The defendant in the.end duly 0 proved the facts stated in the notice. I am not prepared in this instance to rule that the refusal to admit was reasonable. Initially this may have been so~ but a stage was reached where the defendant was driven to incur costs that reasonably could have been saved. The attitude of putting the plaintiff to proof was unduly persisted in. I see no reason to deprive the defendant by election of the benefit which Order 36 rule 2 allows it to obtain. Parties ought to be encouraged to admit facts just as much as they ought to be encouraged to settle actions. 3 JUDGMENT 40 50 60 -- 3 of 25 -- -·~---··- ----------~ .0, 240893 Accordingly, I order the plaintiff to pay the defendant by election its costs of proving the facts contained in the notice to admit facts dated 4 August 1993; otherwise I order the defendant by election to pay the plaintiff's costs to be. taxed on a solicitor and client basis. 4 JUDGMENT 10 20 c; () 30 (J 40 () 50 60 -- 4 of 25 -- () 0 0 IN THE SUPREME COURT OF QUEENSLAND No. 3863 of 1987 Before the Hon. Mr justice Thomas BETWEEN: lAMES. JOHN BLAKENEY Plaintiff AND: ADELGUNDE WILHELMINA SCHEULEN Defendant AND: SUNCORP INSURANCE AND FINANCE Defend ant by Election REASONSFORJUDGMENT-THO~I- Delivered the 24th day of August, 1993 CATCHWORDS: Negligence. - personal InJUries - apportionment of responsibility - volenti non fit injuria - defendant driver affected by alcohol - plaintiff passenger's contributory negligence- quantum- burns. Counsel: M. White Q.C and G. Sowden for plaintiff J. Griffin Q.C. for defendant by election Solicitors: Munro and Thompson for plaintiff W.H. Tutt and Quinlan for defendant by election Hearing dates: 16th to 19th August, 1993 -- 5 of 25 -- 0 0 0 IN THE SUPREME COURT OF QUEENSLAND BETWEEN: lAMES JOHN BLAKENEY AND: ADELGUNDE WILHELMINA SCHEULEN AND: SUNCORP INSURANCE AND FINANCE No. 3863 of 1987 Plaintiff Defendant Defendant by Election REASONSFORJUDGMENT-THO~J. Delivered the 24th day of August, 1993 On the night of 15th March, 1985 the plaintiff was a passenger in a Triumph sedan. The vehicle left the right hand side of Maroochydore Road at a point where Q it takes a bend to the left. It collided with a power pole which it severed at the base. The rear section of the vehicle (mainly the boot area) disconnected from the car and came to rest on the other side of the road some 20 metres or more away. The remainder of the vehicle (in which the plaintiff and the driver were present in the front compartment) burst into flames. The flames, when observers arrived, were very intense. The fire was general, both outside the vehicle and inside the compartment. The Nambour Fire Brigade received a call at 9.07 p.m. and dispatched a vehicle. Travelling time was a further four or five minutes. When the firemen arrived the fire was described as "well involved" with flames four or five metres high -- 6 of 25 -- 2 coming out of the car. It took two minutes to extinguish the fire and a further four minu,tes elapsed before the steam and smoke had cleared. Perhaps another ten minutes elapsed before the rescue vehicle arrived and removed the roof area to give access to the front compartment. The observers had seen only one occupant, but in fact there were two. The plaintiff was lying on the passenger's side of the vehicle which was on its side and he was underneath the charred body of the driver. The driver, being the person on top was more fully exposed to the flames. He was dead upon removal. The other occupant (the plaintiff) was then observed and was given () treatment by the ambulance. Tile plaintiff was shockingly burned and sustained full thickness burns to his arms, trunk and legs involving almost half the area of the whole body. There were other injuries including an abdominal injury, but the burns comprised the significant injury. His right hand was so badly incinerated that much .of it is now missing and the residue is grossly distorted. The photographs (ex. 28) provide the only effective () way to describe the injuries, and they show his body as it now is upon virtually () maximum recovery. Details concerning removal of the driver's body are necessary because the plaintiff's counsel rightly investigated all possible avenues which might account for any error or inaccuracy in the taking and analysing of a blood alcohol and urine alcohol sample from the body three days later. Upon removal from the wreck the body was placed under a sheet, and an undertaker's vehicle promptly arrived. The body was taken to the Nambour Hospital where a doctor at 10.30 p.m. certified "dead on arrival". It was delivered to the morgue and the usual refrigeration took place. Leaving to one side for the moment the possible effects of the fire upon the body, and whether it might affect Q -- 7 of 25 -- 3 subsequent testing for alcohol levels, the evidence satisfactorily excludes any hypothesis of putrefaction or of increase in alcohol readings by reason of bacterial activity. The plaintiff has no recollection of the accident, his last recollection being some minutes earlier when he and his companion (Rainer Scheulen) left the Maroochydore Bowling Alley, with Scheulen driving the Triumph. He recalls that as . they were leaving the bowling alley he noticed some people on the road and that Q "Ray pulled out a bit fast" and he (the plaintiff) told him to "slow down a bit". 0 There were no eye witnesses. . Observations and measurements taken by the police show skid marks (apparently after the vehicle had left the bitumen) of 101.3 metres leading up to the post and accident scene. The last section of them extended into broad side marks from all four tyres. They are consistent with the vehicle carrying on· fairly much in a straight line at a point where the road curves to the left. 0 The bend in the road is not particularly sharp. The area is governed by a road sign limiting speed to 60km/h. The nature of the road and bend however is such that 0 there would be no difficulty in negotiating the bend at speeds considerably in excess of that limit. With proper control there is no doubt that the land could be negotiated without mishap at 90 or lOOkm/h and probably at speeds beyond this. A report by a road and ergonomics expert is of some minor assistance in understanding the available data, but I do not think that expert evidence is necessary in order for me to conclude, as I do, that the vehicles approach speed to the curve was very greatly in excess of 60krn/h. The initial reason for leaving the roadway is uncertain. I accept that side slipping would not occur on this bend unless a speed significantly in excess of lOOkm/h was reached. With respect to the marks on the verge,· the -- 8 of 25 -- 4 expert was unable to say whether they resulted from braking or from the vehicle being in yaw. However each premise bespeaks negligence on the part of the driver. A vehicle travelling at 60km/h would have had ample time to stop within the tyre mark distance. And if the vehicle was in yaw, the expert estimates that a vehicle speed in the vicinity Of lOOkm/h or more would be involved. It is further observed that there was a sufficient speed at the end of the tyre marks to sever the pole on impact. The evidence of Mr Salway suggests that the base of the pole was also moved two feet "sideways". The known facts are sufficient to raise the inference of negligence against the defendant driver. I infer that he was negligent in driving at an excessive speed arid in failing to exercise proper control over the vehicle. The defence has raised a series of issues, compendiously described as volenti, absence of duty of care and contributory negligence. They centre around an allegation that the driver was drunk, that the plaintiff must have known this, and () that such a circumstance should destroy or diminish any right to damages he might () otherwise have. The defence carries the persuasive onus in relation to such issues. The plaintiff was aged 16 at the time of the accident, and lived with his () family at Tanawa which is close to Nambour. He is a member of a sensible and supportive family and he has made a remarkable recovery from very serious injuries and has become a useful member of the workforce. I am impressed with his integrity and do not consider that he attempted to mislead the court in any way. This however is not to say that his recollection of the events that occurred between 2 p.m. and 9 p.m. that night is complete or accurate. At the time of the accident the plaintiff had obtained an apprenticeship in motor mechanics and attended college as and when required. On the day in question -·-···--·--- -----·--- ---~-- - -- 9 of 25 -- 0 0 5 he had just completed a seven weeks "block" course at the Bald Hills Tafe College. He had passed the examinations that were conducted on that day and at abol:lt 2.30 p.m. he and his companions went to the Aspley Hotel to celebrate, and to fraternise with the teacher of the course. The plaintiff (who lived many kilometres away from Bald Hills) was dependent throughout the course upon Rainer ("Ray") Scheulen for lifts to and from college. The usual arrangement was that Scheulen would collect him at a point near Tanawa in the morning and drive him to college. Scheulen was older than. the plaintiff. In fact he was 18 years old but I accept that he seemed older than this. The teacher thought he was about 20 and the plaintiff thought he was about 22. He had access to motor vehicles and I accept that the plaintiff regarded him as an older more experienced person than himself. After college Scheulen would drive him as far as the Caloundra turnoff. . The plaintiff would then ~sually be collected by his mother and taken home. On the day in question the plaintiff and Scheulen, and most of the ten member . class, along with the teacher, were at the Aspley Hotel between about 2.30 .p.m. and 5 p.m. The plaintiff had never drunk in a hotel before, although he had consumed liquor with his parents and no doubt with others on occasions. He drank about five or six beers at the Aspley Hotel. He saw that Scheulen was drinking, but "not consistently". The evidence (which includes that of the teacher (Mr Connell) and another student Mr Bertram), suggests that Scheulen did not drink heavily during that particular period. Thus far the plaintiff, whom I regard in any event as an honest witness, is corroborated by others .. Scheuleri and the plaintiff left the hotel at about 5 o'clock. They stopped at a BP Service Station and had a meal on their way to Caloundra. .Driving time to . -- 10 of 25 -- 6 Caloundra was of the order of half an hour. They then went to the Caloundra Hotel, on the plaintiff's account for about half an hour. According to the plaintiff they each drank about two beers, probably ten ounce beers. They purchased a six pack intending to drink it later at Scheulen's house, where they ultimately intended to spend the night. However they obviously were not looking for an early night. It seems that the plaintiff telephoned his mother whilst he was at Caloundra saying that he would probably spend the night with Ray and that Ray's father would be with them. She .. therefore did not "worry any more" and did not expect him home that () night. It is not clear when they left the Caloundra Hotel but when they did there was a -twenty minute drive to the Maroochydore Bowling Alley. The plaintiff says that his memory of this stage is "blurry". At the bowling alley he felt "a little bit tipsy and tired" although happy because he had passed his exams. Ray, according to his evidence "seemed to be okay". They played a game on pinball machines and (: purchased some chips. They may, on his recollection, have had one of the stubbies. () According· to his recollection they left· the bowling alley at about 7.30 or 8 p.m. That plainly was incorrect, as the drive from the bowling alley to the scene of the () accident would take only a matter of minutes, and certainly no more than fifteen minutes. It must have been close to 9 p.m. when they set off on the fatal journey. Samples taken from the body of the deceased driver reveal a blood alcohol reading of .. 302 and a urine alcohol reading of .37 4. These readings show a consistent relativity in as much as the common ratio between a blood alcohol and a urine alcohol. reading is about 1:1.3. Such a blood alcohol reading is consistent with his having consumed no less than 240 ounces of full strength beer, that is to say at least 24 ten ounce glasses during the pe~iod 3 p.m. to 9 p.m. Had he consumed only the -- 11 of 25 -- 7 liquor recalled by the plaintiff at the times stated, the reading would have been in the vicinity of .05 per cent. There is therefore a significant discrepancy between the two bodies of evidence and the problem is to reconcile them or to reject part of the evidence. The plaintiff's counsel submits that the plaintiff's evidence should be accepted and that I should infer that some error must have occurred in the sampling and testing process, or that some physical reaction may have occurred which may account for a wrong () result. To aid this inr'erence he called evidence from Dr Appleton who expounded upon the various means by which an erroneous result could be reached. On the other 0 hand counsel for the defendant submitted that the specimens were properly taken, that they are objectively proven, and that they prove a far greater intake of alcohol than the plaintiff is now able to recollect. Were I to conclude that the blood alcohol reading, or some reading in that· general area, -is even approximately a correct measure of his blood alcohol content at the time of death, the evidence of Dr Lynch 0 suggests that obvious changes in · the conduct of Mr Scheulen must have been apparent, including indicia such as swaying, clumsy hands, unsteady gait, indistinct 0 speech, confusion and, in the latter stages, falling about. In other words if the reading is· to be regarded as close to accurate, it is inevitable that the plaintiff must have known that he was travelling with a driver seriously affected by drink, and he must be answerable for whatever consequences that that may entail in law. The major witnesses on the question of possible inaccuracy in the results are Dr Ellis (who performed the post-mortem), Mr Lee (the analyst) and Dr Lynch (an expert capable of interpreting results, and also a person with knowledge of the procedures involved and other aspects relating to this question). Other evidence satisfactorily proves continuity in the delivery of the samples and there is no reason -- 12 of 25 -- 8 to think that any problems arose through slow delivery, or improper preservation of the body or samples. Dr Ellis is a well qualified and experienced forensic pathologist with adequate post-mortem experience. The documents that he prepared in relation to the this particular exercise are methodical and relevant. As a witness he presented well and conscientiously. I did not derive any feeling of insecurity in relation to the conscientiousness of his approach or the accuracy of the evidence he gave. If I felt any such insecurity, it would have made it much easier for me to respond favourably ( to the submissions made on behalf of the plaintiff. However I can only conclude that the samples (which included blood taken from within the heart and urine taken from C\) within an 'intact bladder) to have been properly taken. I also consider that I have no option but to accept Dr Ellis's evidence that there were no free fluids in the abdominal cavity, and that the stomach, peritoneum intestines, mesenteric glands, liver and gall bladder, spleen, kidneys and ureters and bladder were all normal and intact. Dr Ellis recorded with respect to the heart "320g - mild heat damage but no ( · J other significant injuries. Coronary arteries clear". The submissions in relation to possible errors in the result are based upon a (J series of possibilities postulated by Dr Appleton. In the end these come down to three possible explanations of a falsely high reading: (a) The effect of heat on· the fluids in the areas from which the samples were taken; (b) · Increased alcohol through bacterial activity; (c) Increased alcohol through diffusion from the contents of the stomach into the organs which the samples were taken. -- 13 of 25 -- 9 So far as the effect of heat is concerned, Dr Appleton was unable to say whether this would result in greater loss of alcohol or the other component of. the sample but he said that there is a possibility that there would be greater loss of the non-alcoholic component. The theory is speculative, and no proper research or writing appears to have occurred on the subject. It was on account of the burning that Dr Ellis took a sample from within the heart rather than from another part of the bloodstream. His evidence and the () evidence of Dr Lynch suggests that the ratio of alcohol would not be increased in the given circumstances. Even more convincing is Dr Lynch's evidence in relation to the 0 0 0 urine sample. He suggests that if error is suspected, one checks with samples of other fluids such as the urine .. If the bladder was intact (as Dr Ellis says it was) he considers that the effects of heat could not taint that particular sample. In fact the urine samp~~ bears. the correct relativity to the heart sample and in this way supports the conclusions in relation to the other sample. I do not propose to discuss the submissions of possible bacterial contamination, as I do not think that the evidence raises that as a reasonable possibility. The suggestion that diffusion of alcohol from the stomach contents, during the three days whilst the body remained in the morgue, into the other organs might explain an increase in the alcoholic content in those other organs, was not put to Dr Ellis. It was put to Dr Lynch who effectively rejected the suggestion. Whilst he conceded that the phenomenon of diffusion had been identified in 1943 and that pathologists are well acquainted with it, he observed that if the organs are intact the possibility gets smaller and smalle:r. If Dr Appleton's theory is correct, it would falsify the entire system of samples taken from deceased persons. That is not to say -- 14 of 25 -- 10 that the theory must be wrong, but one would think that at least someone would have·· done some work on the question and that· some article may have been written about it. In fact there is no basis in the medical literature for the suggestion, and in the end the suggestion that diffusion could account for a substantial part of the high reading of .302 is an ·unsubstantiated suggestion. It should also be observed that Dr Appleton was unable to account for the results of the urine sample (taken from an area much further from the stomach than the heart) consistently with this particular theory. It should also be noted that Dr Appleton's theory requires at least four beers (', to have been very recently consumed and that this is inconsistent with the plaintiff's evidence. · In the·· end it could only be a confident acceptance of the plaintiff's evidence which could induce me to suppose that for some reason the testing must have produced wrong results. Although I regard the. plaintiff as an honest witness I do not think that his recollection of the last three hours before the accident is reliable. There is some loss of memory of a period before the accident, and the plaintiff was anything but () confident in relation, to details of the periods spent in Caloundra and Maroochydore. I can only conclude that during those periods Scheulen must have consumed a very substantial quantity of alcohol. Whether this was directly observed by the plaintiff does not in the end matter greatly, although it seems likely that the plaintiff at the time would have had a fair idea of what his companion was doing. The main point is that Scheulen's conduct, at least whilst they were at Maroochydore, must have been observably unsteady and alcohol affected. By the· same token, it is quite possible that Scheulen held his liquor better than most, and that. the signs he manifested were not gross. Whilst I am satisfied that he must have displayed sufficient symptoms to put even a 16 year old youth on -- 15 of 25 -- 0 0 0 11 his guard, I am not constrained to find that he was rolling drunk or that he showed signs of a gross order. In other words it is not necessary that I infer the worst possible scenario against the plaintiff. In this respect I give at least some credit to the plaintiff's assertion that he "seemed all right". Whilst I take that statement with some circumspection, I accept that the plaintiff probably did not observe signs of gross intoxication. The evidence does not permit a finding to be made that the plaintiff was intoxicated to such an extent that his capacity to understand that Scheulen was drunk was materially affected. In any event, voluntary, intoxication producing such an effect would not help the plaintiff in the circumstances of the present case, as it might in a case where a plaintiff becomes intoxicated before he has any reason to think that his driver will similarly disable himself (cf. Banovic v. Perkovic (1982) 30 S.J\..S.R. 34; Morton v. Knight (1990) 2 Qd.R. 419, 428). This is a question of fact, and the evidence in the present case does not suggest that the plaintiff drank heavily on the occasion in question. The finding that I make against the plaintiff is that he must have observed some signs of intoxication and have known that Scheulen had been drinking too much to be a safe driver and that the signs must have been sufficient to induce a person who _was observing reasonable care for his own safety to decline to travel with such a driver. In short I consider that the plaintiff showed insufficient care for his own safety and that he was guilty of contributory negligence. In considering the degree of this negligence I take into account that he was 16 years old, it was the first time he had been drinking in hotels. His companion was older, more mature person, he was (at least in the first instance) dependent upon that person for a lift (although he could if he chose extricate himself from that -- 16 of 25 -- 12 dependence). I also take into account the gross nature of the negligence of the driver, the fact that the plaintiff had earlier suggested that he slow down, and that the driver was in charge of a· motor vehicle with great potential to cause injury whilst the plaintiff's negligence was passive and had no "causative potency". This latter phrase was cited by Cooper J. in Morton v. Knight (1990) 2 Qd.R. 419, 430, in which His Honour reduced the damage of a plaintiff who travelled with an intoxicated driver by 20 per cent. I reject the submission that this is a case in which the defendant owed no duty ( · of care to the plaintiff; or that the principle of "volenti non fit injuria" applies so as to deprive the plaintiff of any right to claim damages. In support of this submission () Mr Griffin Q.C. for the defendant submitted that in Gala v. Preston (1990-1991) 172 C.L.R. 243 the High Court has introduced. a new and harder attitude towards plaintiffs who travel with drunk drivers. That may or may not be true, but it is difficult to find any such attitude in the published reasons. I do not consider that the passages to which reference was made on pp. 246 and 254 support the submission. The case was directly concerned with criminal enterprises, notably the reckless driving of a stolen vehicle. ·The consumption of alcohol was also a circumstance, but the case says little in relation to the ordinary simple case concerned with the consequences of a passenger's awareness of the driver's drinking. I conclude that the parties were in a relationship proximity to each other such that the driver owed a duty of care to the passenger and that the case should be decided on the us1:1a1 principles of negligence and contributory negligence. I have earlier. found the driver to have been guilty of serious negligence for which the defendant is vicariously responsible. I have .also set out the main factors that emerge. in relation :to ~he degree of fault that should be attributed to the plaintiff -------------·---·--· ------- -- 17 of 25 -- 13 relatively to that of the defendant. In the circumstances I apportion responsibility 85 per cent against the defendant and 15 per cent against the plaintiff. The plaintiff was born on 15th July, 1968. He attended school to grade 10. At age 14 he started doing .voluntary work at a local garage and he gravitated towards motor mechanics. Mr Oakhill (the proprietor of Woombye Mechanical Repairs), took him on as an apprentice and the apprenticeship formally started on 3rd January, 1984. He was thus in the second year of his apprenticeship at the time (-\ of the accident. He was taken to Royal Brisbane Hospital in Brisbane,- and remained ~) unconscious or semi-conscious for a considerable time. His parents spent a great deal of time with him in hospital which they visited daily. The internal injuries required a laparotomy which revealed a rupture of the mesentery. He had circumferential full thickness burns to both lower legs and the right arm. Medical sloughing procedures (escharotomy) were performed. Many procedures were followed under general anaesthesia. These included debriding and the application of split skin (_) grafts; nine of which were perfol'I!led during the first two months. A painful ectopic right elbow needed surgical remedy on 20th June, 1985. When discharged from 0 hospital on 26th July, 1985 he went home to his family, he was then using a four prong walker and later started using single walking sticks. He needed a great deal of assistance from his parents especially during the following six months. His return to work was incredibly swift. He persuaded his former employer to let him continue, although his physical disabilities were extremely painful and restricting. Even now he has a grossly distorted right hand which is described as an 80 per cent loss of function, translating into approximately 70 per cent impairment of the right arm. In addition he has a foot drop problem in the right leg together with a knee with grossly damaged skin tissue which constantly ulcerates and impedes -- 18 of 25 -- 14 his mobility. It is estimated that he suffers a 30 per cent loss of use of the right leg, and the effects of scar breakdown or skin disability is not included in that assessment. He is a right handed person, and is forced to use his left hand as his dominant one in doing his mechanical work. He copes with this, but there are functions, depending upon which side of a car is being worked on, wherein only the right hand can be extended to deal with a particular component, and he is incapable of doing those tasks. Indeed, the work ·that a motor mechanic is called upon to perform is ( essentially two handed work and it is a physically demanding occupation. It requires many changes of · posture and awkward positions. The plaintiff has continued () squatting and kneeling as required (using a sponge for the latter activity) despite fairly constant suffering from open ulcers in both knees which would not heal. He has recently undergone an . operation to the right knee which has improved its condition. His strength is impaired and he cannot lift heavy weights. He is vulnerable to knocks and he accepts pain as the price he has to pay for continuing in ( '; '-.__../ his chosen work. ·Given: the difficulties of being a virtually one handed mechanic, with the associated problems of all his. other disabilities, it is remarkable that he has 0 achieved as much as he has. His position may be summarised as a trained motor mechanic with a 70 per cent disability in his dominant arm; a 30 per cent disability in his right leg; extensive vulnerability to knocks and to skin breakdown over a considerable proportion of his body; difficulty in squatting and in working in awkward positions which a mechanic frequently has to do;. some physical weakness including a lifting disability. He will always need a second worker to be available and he could not manage satisfactorily in a one IIian business. His ability to write has also been significantly impaired. -- 19 of 25 -- 15 The plaintiff has so far undergone no less than 19 serious surgical procedures and says that he has had enough pain and does not want any more surgery. At the same time some further surgery seems inevitable, in particular the left knee continues to breakdown and it will probably be regarded as necessary to undergo an operation to improve it. Further, his grossly distorted thumb could be improved to some extent by a toe to thumb transfer, but that would leave him with a significant cosmetic problem in his foot, and it is a major surgical procedure. I have been describing his present situation. It is not difficult to imagine the difficulties he has undergone in completing his apprenticeship (which he did whilst 0 maintaining his employment with Mr Oakhill, between 1986 and 1989) and in maintaining various other employrnents in the four years thereafter up to the present time. During that period he has submitted to further operations including one on his hand and th~knee surgery earlier mentioned. Since March 1993 he has been .working with Clive Lynch Motors on a () part-time basis, and is occupied three days per week. This is probably a suitable arrangement having regard to the reduced capacities of the plaintiff .. He considers (not inappropriately) that he might be over-exerting himself if he worked a five day week at least on a regular basis. But for the accident the plaintiff would probably have looked for heavier work such as that which a mechanic might obtain in a mining project or on a site where heavy plant and equipment is used. That prospect is of course now denied him. Since his accident he has sensibly based himself at his parents' home and has kept employment in small businesses accessible to his home town. I have no doubt that without the accident he would have moved further afield and sought income of a higher order than that which he now earns. He would like to run his own business, -- 20 of 25 -- 16 and, having regard to the determination and enterprise which he has shown in rehabilitating himself' it seems probable that he would at some stage have developed his own business. He has a good grasp of the trade and his impressed his employers. He very likely still will set up his own business (after receipt of his award} but his capacity as a proprietor .who can only make a limited physical contribution himself will count against its profitability. The plaintiff has also suffered a good deal of mental anguish and this is /,~, ., described in the evidence of Ms McCready (a psychologist}, including two reports and l ;1 oral evidence. He 'has a healthy personality, but he has become shy and to some extent withdrawn and does not make contacts to the extent that he otherwise would have done. Before the accident rugby league was his main sport and he also played squash and engaged in water skiing and was interested in motorcycle racing. Now he plays no sport and has little social life. His loss of amenities and pain and suffering are considerable. 'I have already set out the main facts. His pain, especially in the early (j stages was of an exceptionally high order. His scarring is quite horrific, and the right hand is not only functionally affected, it is a cosmetic disaster and cannot c) effectively be concealed. The scarring, particularly to his legs, constantly breaks down and is vulnerable to knocks. He is a young man and will endure these problems for the rest of his life. He has the substantial loss of his dominant arm and a serious disability in his right leg. Every day of his life will cost him greater effort than others. I would assess damages for pain suffering and loss of amenities at $90,000. ~ No submissions were made -in mitigation of the allowance of interest. I shall allow-· interest at 2 per cent on $35,000 for the period 15th March, 1985 to 16th August, 1993, namely $5,892. ------------- -----~~~----~---- -- 21 of 25 -- 17 With respect. to past economic loss, if he had completed his apprenticeship in the ordinary course, and then continued employment as a mechanic on award wages his total earnings between accident and trial would have been approximately $118,000. In fact during that time he has managed to earn $71,718. However he is a mechanic of superior ability (as former employers have testified) and such mechanics receive higher than award payments. There is further the prospect that by this time (age 25) he would have either commenced his own business or sought employment () elsewhere with higher earnings. Counsel for the defendant submits that I should discount the figures that have been presented, by reason of the contingencies of life. 0 I think that these are outweighed or at least equalled by the prospects of higher than. award wages. I therefore propose to allow past economic loss at $46,264. No submissions were advanced against the allowance of interest on that sum at $23,363. His future prospects were good, and his attitude to work is not in doubt. 0 There is some evidence (from Mr Lynch) who runs a small service .. station with workshop near Buderim earns $800 per week and that the plaintiff might be expected () to earn more than this. However an assessment on the footing of running his own business must take into account that some proprietors fail. On. the other hand obviously much more than this can be made by a well run larger businesses. Counsel for the plaintiff submitted that he has 40 years to age 65, and that it is reasonable to discount. this by ten years· for the contingencies of life. He submitted that the plaintiff has retained approximately one half of his working capacity, and that in the light of the evidence of Mr Lynch and Mr Coert it would not be· unreasonable to allow earnings of between $800 and $1,000 per week. In the end counsel's submission was to project a figure twice the award rate ($685 per week net) for 30 years, and -- 22 of 25 -- 18 for the allowance of one half of that sum as damages. The defence submission was that the plaintiff has retained about 70 per cent of his earning capacity and that he has shown that he has been able to maintain employment on the merits. However I consider that he would have been engaged in full-time emplo~ent at a considerably higher rate than he can now achieve. · In the end I would rate his lost earning capacity as of the order of $300 per week and I regard a projection for a period of 30 years as reasonable. The 5 per cerit tables produce a figure of $246,600, and I shall round this figure down to $240,000 for future economic loss. Other calculations are possible with different multipliers and different projected levels of loss. The above figure in my view (\I"---' represents a fair assessment of the substantial destruction of this man's promising working future. His options are now very limited, and it is not reasonable to think that he can always sustain the tremendous efforts that he must currently be making in order to cope with the limited employments he has so far been able to obtain. The reasonable cost of past care provided by his parents is shown to be $22,392, but during addresses counsel conceded, having regard to the uncertainty of the claim during the early period when the plaintiff may have been unconscious, that this figure should be reduced by $6,000. Accordingly $16,392 will be allowed for this item. Interest thereon will be allowed at $5,075. I shall allow a claim of $5,000 for ·future care in relation to assistance necessary in relation to future operations and generally, indicating that there probably will be a future of medical intervention, and no allowance for this has been madefor losses during periods of recovery. Special damages will be allowed as follows: -- 23 of 25 -- 1'. ,, ('· I "---\1 0 19 Special damages (a) travel by plaintiff ex. 31 $ 624.00 (b) painkillers etc. ex. 32 $ 2,240.00 (c) ambulance ex. 32 $ 365.00 (d) X-rays ex. 32 $ 58.70 (e) Dr Pegg ex. 6 $ 785.00 (f) travel Mrs Blakeney ex. 43 $ 7,792.00 $11,806.00 . The last item (Mrs Blakeney's travel) has by consent been discounted by $5,000 having regard to the uncertainty of the plaintiff's right to recover these costs in relation to the early stages of his hospitalisation. (a) (b) 1. 2. 3. 4. Hospital expenses are proved at $40,387. Interest on the special damages involving outlays will be allowed at $5,962. There should also be allowance for the following future expenses: Creams and painkillers '- $280 per year for 45 years, discounted by reason of present receipt, on the 5 per cent discount tables, $4,000; Cost of future operations (discounted for contingeacies and for present receipt of money) - $16,000. The award may be summarised: Pain suffering and loss of amenities of life Interest on part thereof at 2 per cent Past economic loss Interest thereon Future economic loss Past Griffiths v. Kerkemeyer Interest thereon $ 90,000 $ 5,892 $ 46,264 $ 23,363 $240,000 $ 16,392 $ 5,075 -- 24 of 25 -- 20 5. Future Griffiths v. Kerkemeyer or loss consequential upon operations $ 5,000 6. Special damages $ 11,806 Interest thereon $ 5,962 7. Hospital expenses $ 40,387 8. Future expenses $ 20,000 TOTAL $509,541 !' Fifteen per cent of this must be deducted by reason of contributory \- ) negligence. There will be judgment for the plaintiff for $433,109.85. C> (J -------- ---------- ---~ ------ -- 25 of 25 --