Black v Blacktown City Council [1999] NSWSC 152

New South Wales Supreme Court CITATION : Black v Blacktown City Council [1999] NSWSC 152 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 10056 of 1993 HEARING DATE(S) : 06/04/98 - 07/04/98 JUDGMENT DATE : 11 March 1999

PARTIES : David James Black (plaintiff) Blacktown City Council (defendant) JUDGMENT OF : Hidden J at 1

COUNSEL : H. N. Kelly (plaintiff) M. T. McCulloch (defendant) SOLICITORS : Doherty Partners (Plaintiff) Phillips Fox (Defendant) CATCHWORDS : Negligence - contributory negligence ; Damages - quantum; No question of principle DECISION : Judgment for the plaintiff

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

Thursday 11 March 1999

10056 of 1993 DAVID JAMES BLACK v BLACKTOWN CITY COUNCIL

Reasons for judgment

1 In the early hours of 19 March 1987 the plaintiff, David James Black, was injured when he lost control of his motorcycle at the intersection of Vardy's Road and Bowmans Road, Marayong. (At that time the relevant section of Vardy's Road was considered to be part of Bowmans Road, but it is easier to use the current nomenclature). It is his case that he lost control of the bike because of loose material on the surface of the road, which he described as "blue metal", which was there as a result of road works undertaken by the defendant, the Blacktown City Council. The defendant denies that the road was in that condition and, on the question of liability, this is the central issue in the case. 2 Vardy's Road runs roughly east to west. Proceeding in that direction, Bowmans Road intersects with it at about a forty-five degree angle on the left, that is, on its southern side. Immediately before that point Turbo Road intersects with it on the right (the northern side). At the time of the accident, the section of Vardy's Road to the west of Turbo Road was under construction and west bound traffic in Vardy's Road had to veer left into Bowmans Road. The Accident 3 Some distance to the east of that point Tattersall Road crosses Vardy's Road, and the plaintiff approached Vardy's Road from the south in Tattersall Road. He stopped at the intersection to give way to a car approaching from his right in Vardy's Road. He then turned left into Vardy's Road and overtook that car at a point about 50 metres east of Turbo Road. He said that his speed reached about 80 kph in the process but he had slowed down by the time he reached Bowmans Road. He applied his brake to negotiate the bend, but he denied braking heavily or going into a skid. 4 It was there, he said, that he struck the material on the road. Although his headlight was on, he did not notice that material until he was "right on top of it". He immediately lost control of the bike and was unable to regain it. The bike veered off the roadway and his next recollection was waking up at Blacktown Hospital. 5 The plaintiff was familiar with the area where the accident occurred. He was an experienced motorcyclist, and he said that it is impossible to control a cycle on material such as blue metal. This received some support from the report of Mr Max Thompson, a former motorcycle racer and an instructor in motorcycle riding techniques, who observed that a road surface "covered with blue metal is a high risk area whilst cornering." 6 The car which the plaintiff overtook was driven by Ms Belinda van Zyp and Ms Penny Giblin was a passenger in that vehicle. Neither was called as a witness but each of them made brief statements to a police officer investigating the accident, which he recorded in his police notebook. Ms van Zyp said that the motorcycle overtook her car "very fast". She saw the rider "put the brakes on" at the Bowmans Road corner, but the bike "started to skid out sideways, off the road and then there was just a cloud of dust". Ms Giblin described the bike as "flying past" the car. She said that at the Bowmans Road corner the bike "kept going straight ahead, and I saw all the dust as he went off the road." 7 According to an ambulance report, officers who attended the scene found the plaintiff lying by the side of the roadway. The casualty record at Blacktown Hospital notes that, when he was first examined there, he could not remember what had happened. The same document records a "history from ambulance" to the effect that the plaintiff had missed a curve and gone off the road. Whether that history emanated from the plaintiff himself is very unclear, and I do not consider it to be of any evidentiary significance. On the other hand, it may be that he gave an account consistent with his evidence to Dr Atish Sengupta who, according to the hospital records, assisted when he underwent surgery that same day. He consulted Dr Sengupta in May 1988 for advice about his future treatment, and that doctor provided a report to his solicitors on 22 March 1993. The account of the accident in that report is that the plaintiff "took a corner and lost control because of excessive gravel on the road". I am asked to infer that that is the history he gave the doctor while at the hospital. 8 However, on 30 March 1987 (about ten days after the accident) the plaintiff made a statement at the hospital to the investigating police officer, Constable Andrew Passmore. Having described the course of his journey to Vardy's Road he said: The next thing I can remember is travelling down Vardy's Road, towards Marayong, I overtook a car and that's about all I can remember. The statement is silent about the speed at which he was travelling and it seems that the Constable did not ask him. From the defendant's point of view, the significant omission is any reference to "blue metal" on the surface of the road. 9 Constable Passmore examined the scene of the accident about an hour after it had occurred. He saw the plaintiff's motor cycle on the ground where it had come to rest. He observed a lengthy skid mark, which he measured approximately by pacing it out. It commenced six metres east of Turbo Road and continued more or less in a straight line for 22 metres across the tarred surface and for a further sixteen metres across dirt at the side of the road, until it ended at a ditch. The bike was about ten metres beyond that ditch. The length of the skid mark led him to believe that speed was a factor in the accident. 10 Constable Passmore did not notice any loose material on the roadway in the area which he examined. He gave evidence that he would have recorded anything he saw which he considered might have contributed to the accident, and that he was aware of the possible significance of such material on the road surface in a motor cycle accident. The road works 11 During 1987 the council was engaged in widening Vardy's Road to the east of Turbo Road, so as to create two lanes of traffic in each direction, and extending Vardy's Road to the west of Turbo Road towards an underpass at the railway line just north of Marayong Station. There was conflicting evidence about how far that work had progressed at the time of the accident. 12 The evidence of the plaintiff, who then travelled on that stretch of roadway regularly, was that the work was virtually complete. He said that "they had just finished tarring" the section of Vardy's Road to the west of Turbo Road, and barriers had been in place for a few days to stop traffic proceeding onto that part of the road. He said that the widening and sealing of the section of Vardy's Road to the east of Turbo Road had been completed, although he could not say how long that was before the accident. 13 On the other hand, Constable Passmore's recollection was that the work was at a much earlier stage. He said that construction work was going on to the west of Turbo Road, although not in the immediate vicinity of the intersection, which he described as "just clear ground". He agreed that there were barriers of some kind, made either of timber or para-webbing, blocking access to that section of Vardy's Road. According to him, however, all that had been done to the east of Turbo Road was some clearing for the purpose of widening the road, and Vardy's Road there was still only one lane in either direction. He left Blacktown police station in June 1987, some three months after the accident, and his recollection was that the road work had still not been completed. 14 Mr Gregory Morgan, director of the defendant's Technical and Transport Services, gave evidence. In 1987 he was the defendant's construction engineer and he became involved in the road works in January of that year. At that stage, he said, clearing of land which the defendant had acquired had commenced for the purpose of widening the section of Vardy's Road to the east of Turbo Road. The western section was being excavated and sandstone being laid. An entry in a diary kept by the defendant for 18 March, the day before the accident, confirms that excavation on the western side, near the Bowmans Road intersection, was taking place that day. An entry for the day of the accident states that excavation continued and sandstone was laid, presumably in that same area. Mr Morgan said that the western section of road was tarred around the middle of 1987, and the eastern section later than that. He identified a return sheet for the delivery of asphalt in July 1987, which he believed was the first delivery to the site and was used for tarring the western section of the road. 15 The effect of Mr Morgan's evidence is that none of the work being undertaken at the time of the accident was such as could have caused loose material to be deposited on the roadway, as the plaintiff alleged. The sandstone was delivered by truck but he said that it was the practice for it to be deposited and laid immediately, rather than being stockpiled. That being so, the sandstone laid on the day of the accident would have been delivered during the course of that day, some hours after the accident occurred. On the southern side of Vardy's Road, east of Turbo Road, a wall was being constructed to mark the intended new boundary of the road, and this entailed the delivery of shale by truck to the site. However, Mr Morgan explained that this work was being carried on some distance from the existing roadway and, in particular, from the Bowmans Road intersection. He added that the trucks delivering the shale would not have crossed that intersection, because they approached the site from the east and left it the way they had come. Liability 16 Some evidence was led bearing on the plaintiff's credibility. He has a criminal record, most of it now fairly old, for offences of dishonesty and driving offences. He was not wearing a helmet at the time of the accident (although, happily, he did not sustain any significant head injury). In evidence he explained that the helmet had been stolen from where the bike had been parked earlier that night. He added that maybe he should not have ridden the bike for that reason. However, he told Dr Edward Schutz, consultant surgeon, who examined him in 1997 on behalf of the defendant, that he had the helmet on the side of the bike but was "too lazy" to wear it. In cross-examination, he said that he had given Dr Schutz that account because he feared that what he told the doctor might be reported to police, and he did not wish it to be known that in fact he did not have the helmet at all. 17 That said, the plaintiff appeared to me to be an honest, unsophisticated witness. Indeed, when addressing on the central issue of whether there was loose material on the road, counsel for the defendant did not suggest otherwise. The plaintiff said that the first time he had been to the scene of the accident since it occurred was about two years later. By then, of course, the road work had been completed. Counsel for the defendant suggested that, influenced by what he saw on that occasion, the plaintiff had unconsciously reconstructed in his mind the state of the road work at the time of the accident. As I understand it, the argument was that his image of the road having recently been sealed led to a mistaken belief that there had been loose blue metal on the surface. 18 I am satisfied that the roadway in the area had not been tarred at the time of the accident, and that the road works generally had not progressed to anything like the point described by the plaintiff in his evidence. On that question, I accept the evidence of Mr Morgan. 19 I am mindful of the fact that the plaintiff had no memory of what occurred when he was admitted to Blacktown Hospital and that, some ten days later, his account to Constable Passmore of what he could remember did not include any reference to loose material on the road. His lack of memory on his admission does not particularly concern me, but his description of the accident to Constable Passmore is more significant. On the other hand, as will be seen, he was seriously injured in the accident, he had undergone surgery and was still in hospital at the time. When he spoke to the Constable, he said, he was "a mess". The history he gave Dr Sengupta, consistent with his evidence, is in his favour. Dr Sengupta was not called and it is unclear when that history was provided. However, if it was given at some later time and was significantly different from any account he had given at the hospital, one would have expected the doctor's report to say as much. It does not. 20 Of course, the fact that Constable Passmore did not notice any loose material on the roadway when he attended the scene is also significant, particularly in the light of his evidence that he would have recorded his observation of anything that might have contributed to the accident. Nevertheless, there is some force in the submission of counsel for the plaintiff that he might not have appreciated the significance of material of that kind, given that its relevance would not have been obvious from anything which he might then have been told about the accident. I have given the whole of the evidence careful scrutiny, and I am satisfied on the balance of probabilities that there was some such material on that part of the roadway at the relevant time. 21 I believe that the plaintiff's recollection of loose material of some description is genuine. I cannot accept the argument of counsel for the defendant that it is an illusory memory, born of his subsequent observation of the completed road work. I have earlier referred to the entry in the defendant's diary (exhibit E1) for 18 March 1987, the day before the accident, that excavation to the west of the Turbo Road/Bowmans Road intersection was being carried on that day. The location of that work can be ascertained more precisely by reference to a plan of the proposed road works (exhibit 7), and it appears to have been close to the Bowmans Road intersection. It could be that that process itself produced some debris which an untrained observer might describe as "blue metal" or "gravel". However that may be, Mr Morgan explained that the laying of sandstone for the western section of the roadway had already commenced at that time. Trucks delivering the sandstone, he said, were likely to have approached the site from Bowmans Road. He said that spillage of material from the trucks was very unlikely because they were covered and, in any event, the moisture content of the material kept it compacted. 22 On this aspect, Mr Morgan was giving evidence of the usual procedures adopted in the course of the construction. Although he attended the site very regularly, he acknowledged that he had no recollection of 18 March in particular. I have referred to the possibility that debris from the process of excavation was scattered on the roadway. There is also the possibility of shale being spilt from trucks delivering that material to the site on the eastern side of Turbo Road although, in the light of Mr Morgan's evidence, I think it is remote. It is more likely that sandstone was spilt from trucks approaching the western site. This must have been a real possibility, notwithstanding Mr Morgan's evidence that it should rarely occur. (The question whether sandstone might have been scattered in the course of being laid was not explored in evidence.) It is significant that the plaintiff appears to have used the expression "gravel" in his history to Dr Sengupta (and to other doctors). Although imprecise, that is the expression which many people would use to describe the sandstone. 23 It is clear that the defendant was the only organisation carrying on construction work in the area at the relevant time. Accordingly, I am satisfied that the defendant is responsible for the deposit of loose material on the roadway. It should have been cleared away or, at least, there should have been a warning of its presence. Equally, I am satisfied that that material was the major factor causing the plaintiff to lose control of his motorcycle. 24 However, it was not the only factor. I am also satisfied that the plaintiff was riding too fast in the circumstances, having overtaken the car in which Ms van Zyp and Ms Giblin were travelling. Their descriptions of the bike's speed must be treated with some caution, as neither was able to be tested in oral evidence. However, their impression that the bike was travelling very fast is confirmed, at least to some extent, by the lengthy skid mark which Constable Passmore observed. I accept that the skid must be due in part to the loss of traction caused by the material on the roadway. Nevertheless, given that the skid mark commenced some metres east of the Turbo Road intersection, I think it more likely than not that the plaintiff had to brake heavily in anticipation of his turning into Bowmans Road. It is probable that at that point he was travelling faster than the estimate he gave in evidence. For that reason I am unmoved by the observation in the report of Mr Thomspon, the motorcycle instructor, about a safe speed for a cycle at that intersection. I would, in any event, place little weight on that evidence. 25 Accordingly, I am satisfied that the accident was the result of the defendant's negligence but that there was contributory negligence on the part of the plaintiff. In the light of that contributory negligence, I consider it just and equitable to reduce the damages he might otherwise recover by 25 per cent. Damages 26 The plaintiff, born on 30 September 1958, was aged twenty-eight when the accident occurred and is now forty. At the time of the accident he was married and had an infant son, although he was separated from his wife. After the accident there was a period of reconciliation with his wife and she gave birth to another son. However, in circumstances which I shall describe, the relationship came to an end permanently. At the time of the trial he was living with a de facto partner. 27 He left school before he turned fifteen without gaining his School Certificate. He undertook a motor maintenance course, but thereafter he worked mainly in labouring jobs. These were interspersed with periods of unemployment: usually of a few months, the longest being twelve months. At the time of the accident he had been working for about a month at Comalco Aluminium Ltd as a storeman and packer. He had enjoyed good health. 28 On admission to hospital after the accident, the plaintiff was found to have a compound fracture/dislocation of the right wrist, a right brachial plexus injury, pneumothorax and fractured rib on the right side, laceration of the liver and multiple other lacerations which need not be further described. Surgery involved open reduction and internal fixation of the wrist and treatment of the pneumothorax and liver laceration. The other lacerations were sutured. He was discharged about a fortnight later, on 31 March 1987. 29 The most serious and enduring result of the accident arises from the right brachial plexus injury. The plaintiff was left with a flail, functionless right arm. Neurological investigation revealed that there had been a complete nerve root avulsion, and the chance of recovery of the use of the arm was very poor. He could not move his arm, and it was either in a sling or hanging beside him. He found it frustrating and he consulted specialists about having it amputated. An above elbow amputation was performed at Lidcombe Hospital in December 1988. 30 Despite some resistance on his part, the plaintiff was later supplied with a prosthesis. However, he found it to be of no use and, as he put it in evidence, "it finished up in the cupboard". This is consistent with the view of Dr Peter Kendall, consultant physician, who was engaged by the plaintiff's solicitors for medico-legal purposes. In a report of 22 August 1996, the doctor said of the plaintiff: He has suffered a 100% loss of his right arm and I do not think, even with increased experience and use, his prosthesis will be of any benefit to him except from a cosmetic point of view and that will be outweighed by the need to carry a cumbersome contraption strapped to his trunk and other shoulder. 31 It is obvious that the plaintiff is no malingerer, a matter which enhances my assessment of his credibility generally. Dr Kendall was "most impressed with his attitude" and found him a "particularly credible man". The doctor described him as "a most remarkable individual who has overcome tremendous odds". Dr James Athanasou, psychologist, who prepared vocational assessments on behalf of the defendant, wrote of his presentation as "appropriate to the situation", observing that "he related to me in a very pleasant manner". His stoicism was evident from the following answers in his evidence in chief: Q. How do you feel about not having an arm? A. Don't feel good about it but I have to live with it. Q. Does it concern you, the fact that when you walk around you don't have an arm and people look at you? A. It did at first but now I have learned to live with it. 32 Prior to his arm being amputated he experienced constant pain in the wrist and elbow. That sensation continued as phantom pain after the amputation, the intensity of it depending on the weather. In evidence, he said that pain "is there 24 hours a day, seven days a week", and that he had "just learned to live with it". 33 The loss of the plaintiff's right arm is a most distressing circumstance, relieved only by the fact that he is left handed. The other sequelae of the accident are much less serious but are, nevertheless, significant. After his discharge from Blacktown Hospital he stayed for eight months with his mother, a nurse, who cared for him until he was able to manage himself. It took him about six months to walk properly again. It seems that he sustained some injury to his thoracic spine, and he said in evidence that he still got "a little bit of lower back pain". Dr Kendall was of the view that "over the years he is bound to get a significant amount of mid-dorsal backache…". The doctor was also of the opinion that he has been left with restrictive lung disease. The plaintiff said that he was prone to the flu, although he kept this under control by flu injections. 34 As observed earlier, he attempted reconciliation with his wife in 1988. This led to the birth of their second son, but three months later the relationship broke down. It would seem that this was contributed to by the pain resulting from his injuries, together with his distress at his condition generally. He said that on a couple of occasions he "belted up" his wife and even attacked his mother, and the police had to be called. At the time of the hearing he had been living with his de facto wife for about four years, and he described that relationship as stable. 35 He had been a keen motor-cycle rider. Since the accident he has had to content himself with riding as a pillion passenger with some friends. He had enjoyed fishing and, while he continues to fish, he said that it is "a lot harder" with one arm. At the time of the hearing he had been unable to find work, although he had been doing odd jobs from time to time at a friend's farm. He said that that work took him longer because of his condition and he was under no pressure to complete a task in any particular time. Nevertheless, he enjoyed it and he saw farming as a possible occupation in the future. Unfortunately, given his major disability and limited education, I consider his employment prospects to be fairly bleak. I shall turn to that question in more detail in a moment. General Damages 36 The assessment of general damages is purely a common law exercise, as the accident pre-dates the Motor Accidents Act 1988. Taking into account the nature and extent of his injuries and their continuing effects upon his personal well-being and lifestyle, I think that the appropriate figure is $150,000. I would attribute one third of that amount to the past, and that proportion should attract interest at the usual rate of two per cent. Economic Loss 37 As a storeman and packer with Comalco Aluminium Ltd, the plaintiff's average net weekly wage at the time of the accident was $223.50. As I have said, he has had no paid employment since. Efforts to find a job through an organisation dealing with employment for disabled people were unsuccessful. At the time of the hearing he had been receiving a disability pension for some years. 38 The plaintiff told Dr Kendall that he would like to set up a small farming enterprise, and Dr Schutz observed "that he seemed quite keen on working if he could find a job". In his report of August 1996, Dr Kendall concluded that he "is entirely non competitive as a potential employee and lacks the intellectual and emotional capacity to become competitive in a clerical job". The doctor added that he considered self employment an option, although the plaintiff would need to undertake a small business course and would need assistance with the administration of funds. Dr Athanasau concluded that the plaintiff "had the potential to continue in the work force at an unskilled level". He listed some occupations, such as street vendor, service station attendant, or caretaker, of which he might be capable. However, he cautioned that the plaintiff's employment prospects are "reduced by his prolonged absence from the work force", adding that he "would now be at significant risk of very long-term unemployment". 39 There is no evidence of the current wage of a comparable employee at Comalco. I was supplied with the Australian Bureau of Statistics figures for average weekly earnings for the period from 1987 to 1997. Increases in the average wage over that period suggest that at the time of the hearing the plaintiff's pre-accident wage would roughly have doubled: a figure of, say, $450.00 per week. Given his physical and educational limitations, I am by no means optimistic about his prospects of employment, including establishing a business of his own. Nevertheless, on the evidence as a whole, I am bound to find that there is some residual work capacity. The practical approach to this matter suggested from the Bar table commends itself to me. That residual capacity would be recognised by allowing $300.00 per week for past wage loss over the whole period since the accident, and the same figure for future wage loss. 40 Future wage loss should be assessed by the application of the three per cent tables. The amount for past wage loss should attract interest at seven per cent. Counsel for the defendant submitted that a larger than usual deduction should be made for vicissitudes, given the plaintiff's somewhat chequered pre-accident work history. However, in all the circumstances, I think that the usual rate of 15 per cent is appropriate. Of course, Social Security payments will have to be deducted. Short Minutes 41 Of course, the total amount of damages must be reduced by 25 per cent to reflect the plaintiff's contributory negligence. I request the parties to bring in short minutes to give effect to my reasons and, if necessary, I shall hear argument on costs. On the question of damages generally, counsel should not hesitate to inform me if I have made any technical or procedural error or have failed to deal with any relevant matter. **********