Anderson v Salaitoga [1994] FJHC 42; Hbc0353j.89s (4 May 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)
CIVIL JURISDICTION

ACTION NO. 353 OF 1989

BETWEEN:

KYLIE-JANE ANDERSON
of 73 Ford Street, Ivanhoe, Victoria, Australia, formerly
c/- G.P. Lala & Associates, Solicitors,
94 Waimanu Road, Suva
Plaintiff

AND

IOWANE SALAITOGA
c/- Vatukoula Gold Mines, Vatukoula, Welfare Officer
Defendant

D.E. Curtain and R. Gopal: For the Plaintiff
R. Krishna and V. Mishra: For the Defendant

Dates of Hearing: 23rd, 24th, 25th, 26th November, 23rd December 1993,
24th January, 25th February and 18th April 1994
Date of Judgment: 4th May 1994

JUDGMENT

The Plaintiff who is now aged 28 claims damages for personal injuries which she suffered in a motor vehicle accident on Queens Road between Sigatoka and Suva on the 3rd of May 1987. At the time the Plaintiff was driving a small four-wheel jeep, which she was renting from Avis-Rent-a-Car, from Sigatoka to Suva. About 5 kilometres on the Suva side of the Navua bridge and at a point which I find to be approximately 60 metres on the Suva side of what is now called the Warwick Hotel her jeep collided with a Nissan Blue Bird Station Wagon driven by the Defendant which was travelling from Suva towards Sigatoka. The Plaintiff suffered serious injuries in the accident which she alleges was due to the negligence of the Defendant. The Defendant denies negligence. I shall now summarise the evidence given before me.

THE ACCIDENT

The Plaintiff herself has no recollection of the accident having suffered retrograde amnesia as a result of the accident. Her last recollection of events before the accident was of leaving the driveway of the former Hyatt Regency Hotel and moving on to Queens Road with the intention of driving to Suva. Her next brief recollection was of lying on her stomach and asking her girlfriend who was a passenger with her in the jeep where they were. The only eye witnesses called by the Plaintiff and the Defendant as to the circumstances of the accident were a Mr. Liam Sears of Vancouver, Canada who was a passenger sitting in the rear seat of the Plaintiff's jeep and the Defendant. Sitting next to Mr. Sears was another passenger a Miss Nathale Florin. Mr. Sears was sitting on the rear passenger seat of the jeep on the left with Miss Florin sitting opposite on the off side. Another passenger Julie Davidson, a friend of the Plaintiff, was sitting next to the Plaintiff in the front seat of the vehicle. Neither Miss Davidson nor Miss Florin was called to give evidence for the Plaintiff but two other witnesses were called by the parties to give evidence of what they saw at the scene of the accident shortly after it occurred. They were a Mr. John Francis Byrne of Suva who was driving from Pacific Harbour towards Sigatoka and a Mr. Ramasi Vitale of Lobau, Queens Road, Navua who lived near to the scene of the accident and came down to the scene shortly after hearing a crash.

In opening the Plaintiff's case her senior counsel stated that in addition to the witnesses Sears and Byrne the Plaintiff would also call a Mr. Subarmani Murgassa who would say that he was travelling behind the vehicle driven by the Plaintiff who was driving at a moderate pace on the correct side of the road when the accident occurred. Counsel said that Mr. Murgassa would state that he saw the vehicle driven by the Defendant travelling at a high speed, cross over from its correct side to its incorrect side of the road and then hit the vehicle driven by the Plaintiff.

In the event Mr. Murgassa did not give evidence at all and this was made the subject of adverse comment by counsel for the Defendant; I shall refer to this later.

Liam Sears stated that on the 3rd of May 1987 with his friend Nathale Florin he had left Tabakula Resort near Sigatoka and was waiting for the public bus to go to Suva. The vehicle driven by the Plaintiff stopped and the Plaintiff gave Mr. Sears and Miss Florin a lift. Mr. Sears said that the Plaintiff's vehicle was a Suzuki Samarai 4WD small jeep which had provision for four passengers including the driver.

Mr. Sears stated that he had an unobstructed view between the two front seats. He was not wearing a seat belt because he did not believe there was one at the back seat but he believed the Plaintiff and her companion in the front seat were wearing seat belts. Mr. Sears said that they left Sigatoka between 9 and 10 a.m. and took between 35 and 45 minutes to reach the Hyatt Regency Hotel where they stopped for about 15 minutes during which one of the hotel staff put on the soft top of the Plaintiff's jeep because there had been some light rain earlier. After leaving the hotel they moved on to Queens road and headed towards Suva. Mr. Sears said that at the time of the accident he was aged 23 and had held a driving licence in Canada for 5 years. He estimated that approximately at midday when visibility was perfect and the road mostly dry except for a little moisture on the edges and on the centre line the accident occurred. The road was sealed and he remembered that there was a dividing line but could not remember whether at the scene of the accident this was broken. He said there was room for one car travelling in each direction to pass and that approaching the scene of the accident the Plaintiff was travelling at 70 kilometres per hour which Mr. Sears regarded as a comfortable speed. He said that as a driver he felt no apprehension. The Plaintiff was travelling in the middle of her lane. As they approached the scene of the accident Mr. Sears noticed a small truck approaching the Plaintiff's vehicle. Suddenly another vehicle pulled out from behind the truck and attempted to overtake it. It was unsuccessful and as a consequence it hit the Plaintiff's vehicle.

As an experienced driver Mr. Sears expressed the opinion that the driver of the overtaking vehicle, whom I find to have been the Defendant, had no time to safely overtake the vehicle, was accelerating in an effort to pass the truck and that the whole of the overtaking vehicle, whose speed he estimated at between 90 and 100 kilometres per hour, was on the Plaintiff's side of the road.

There was a heavy impact on the left side of the lane going towards Suva. He said the two vehicles hit head on and that the overtaking vehicle took no evasive action but was accelerating so as to try to get in front of the vehicle it was overtaking. Mr. Sears said that there was then a sickening impact and the Plaintiff's vehicle was thrown about 28 feet back on its left hand side into a ditch. The Defendant's vehicle stopped in the centre of the road and it spun sideways across the road and was straddling the road.

In cross-examination Mr. Sears said that the overtaking vehicle must have been doing over 100 kilometres per hour. It was not slowing or swerving to the left. Mr. Sears said that the Defendant's vehicle was overtaking on the wrong side of the road for about 80 feet before the collision.

The witness stated that he did remember that the left head light of the Defendant's vehicle was on the centre of the road but at a slight angle. The Defendant was definitely on the wrong side of the road and there was insufficient room on her left hand side for the Plaintiff to go through. Mr. Sears said he was positive about this.

He denied that the Plaintiff was in the process of overtaking a minibus and was on her wrong side of the road when the accident occurred. He was definite that the Defendant was on his incorrect side. He said when the Defendant swerved on the incorrect side he was approximately 50 to 100 feet from the Plaintiff's vehicle and it was thus impossible for the Plaintiff to avoid the accident.

He repeated that the Plaintiff was not driving at a very high speed and said that there were no beer bottles in the Plaintiff's vehicle nor had the Plaintiff or anybody else to his knowledge had any alcohol before the accident. He said that for a person of his size he was cramped in the Suzuki but denied a suggestion that his view of the road ahead had been obstructed by the head of Julie Davidson. He said that after the accident he had gone to Melbourne and visited the Plaintiff with his brother-in-law and had stayed with her parents at Ivanhoe. The Plaintiff was not there at the time but he met her on two occasions and he thought she may have come to her parents house for dinner with her boyfriend.

As a result of the collision Mr. Sears himself was injured, suffering a shattered right femur and dislocated left shoulder and he was taken to the CWM hospital in Suva and after 12 days was escorted back to Canada. He has also taken civil action against the present Defendant. He stated that he did not speak to the Defendant after the accident but saw the Plaintiff clutching the wheel of her vehicle and slumped forward over the wheel unconscious.

Mr. Sears could not remember whether the Plaintiff overtook any vehicle from Tabakula until the accident occurred. He could not say positively that the Plaintiff's vehicle did not overtake a minibus immediately before the accident. He denied a suggestion by counsel for the Defendant that he had been in conversation with the Plaintiff or that Julie Davidson and Nathale Florin were conversing with the Plaintiff. He said the Plaintiff may have spoken a few words during the journey but these were only pleasantries. He said that the Plaintiff was not driving constantly at 70 kilometres per hour but had slowed down for pedestrians and animals which they passed on their way. He stated that he could judge the approximate speed of all on-coming vehicles and was sure the Defendant must have been doing over 100 kilometres per hour or between 90 to 100 kilometres per hour. He said judging by the impact the Defendant must have been travelling at a fairly fast speed. He remembered Mr. John Byrne arriving at the scene and assisting to rescue the injured persons. When pressed about his recollection of events immediately before the accident he stated that he was sure the Defendant's vehicle was still accelerating to return to his lane in front of the truck. He said that he saw the left hand head- light of the Defendant's vehicle on the centre line of the road coming on a slight angle towards the Plaintiff's vehicle. He stated that it was the force of the crash which caused the Plaintiff's vehicle to be pushed back 28 feet.

The evidence of the Defendant was a direct contradiction of that of Mr. Sears. He said that his wife was sitting beside him in the front seat of their Station Wagon and that they were travelling with their four children. He stated that they had left Suva about 10.00 a.m. and that his wife and he were wearing seat belts. Just before the scene of the accident which was near Lobau, Navua, he had been descending a mild slope and at the bottom of it had to negotiate a right hand bend. After doing so the road became straight ahead. At this straight stretch his speed was between 65 and 70 kilometres per hour. The road was tarsealed and the weather calm. The road was slightly damp and it was cloudy.

After he had travelled along the straight stretch for about 1 chain the accident happened. There was no vehicle in front of him as he drove towards Sigatoka; nor was there any vehicle behind him. He saw a minibus coming in the opposite direction from Sigatoka towards Suva and a white car following the minibus about 2 to 8 chains behind it. Apart from these two vehicles he saw no other vehicle proceeding towards Suva. Mr. Salaitoga was on the correct side of the road and then something happened. He said that suddenly when he looked at the minibus, "I saw a red jeep trying to overtake it from the back of the minibus". He repeated this statement as though to emphasise it.

When he saw the jeep pulling out and coming on to Mr. Salaitoga's side Mr. Salaitoga stepped on his brake so as to reduce his speed. A collision occurred, the jeep hitting the right hand side of Mr. Salaitoga's vehicle before the jeep reached its own side. He said that the right hand side of the front of his car hit the jeep. By "front" he meant the front head light of his car and half the front of his car. The force of the impact pushed back the engine of his car.

He said immediately before the accident his vehicle was just near the centre line on his correct side. He also said that there was only a short time between when he saw first the jeep until the collision. He said that his car stopped dead at the point of the impact. He was injured and could not get out of his car but his wife and their children got out; they suffered internal injuries. He said that the jeep went over the road on its own side, its engine pushed back and the right hand side front door jammed. The engine of the Defendant's car hit his leg so that he could not move. He said the car was turned to the centre of the road with the front facing the hills on his right. He said the minibus came on to his right hand side and parked in front of him on its correct side. He said that after the collision the red jeep was lying at the side of the road off the tarsealed portion. The jeep was lying more towards Suva.

In cross-examination he stated that on the 7th of May 1987 an Inspector Singh visited him in the CWM Hospital Suva and told him that he wanted to take a statement from Mr. Salaitoga. He said he could not remember whether Inspector Singh had served him with any notice of intended prosecution because he was heavily drugged. Inspector Singh had asked him what had happened but the witness requested him to see him again after two weeks when he would speak to him. He denied telling Inspector Singh that he did not know how the accident had happened. He also said that he told his insurance company and his lawyers in a written statement about the white car which he said had been following the Plaintiff. He had made the statement when he received the Writ in the action.

At this stage counsel for the Plaintiff called for production of the statement. I upheld an objection from Defence counsel to its production on the ground of privilege. The witness continued that he believed the Plaintiff was totally to blame for the accident. He also agreed that not one person travelling in his car including himself had made any claim for damages for personal injuries on the Plaintiff. He then stated that in fact he had made a claim on behalf of his family through a solicitor but had not received any money as a result of the claim. He said that he had alleged in his statement the Plaintiff was overtaking another vehicle. He did not know why this was not alleged in the Statement of Defence. He maintained that he was not travelling more than 65 kilometres per hour shortly before the accident.

The evidence of Mr. John Byrne on behalf of the Plaintiff was that he had been driving along Queens Road towards Sigatoka from Pacific Harbour on the day of the accident. When he reached the scene he saw a red Suzuki 4WD soft top and the Defendant's Station Wagon at the scene of the accident. He said there was debris on the road with some concentration in the Suva-bound carriage-way. He said that the Suzuki was further over on the left hand side about 10 feet off the road in the Suva-bound carriage-way. The Defendant's Station Wagon was approximately in the middle of the road. He saw a female in the driver's side of the Suzuki and a seat belt fitted to the driver's side. He remembered this because there had been attempts to take her out of the jeep. He had tried to cut the seat belt with a cane knife and he saw that the driver of the Suzuki was secured in her seat by a seat belt. She was bleeding from her nose and mouth and there was other blood around her. Her left elbow was trapped at the joint and he could see white bone. He thought that her right knee was crushed against the dashboard.

He helped to get the Plaintiff out of the vehicle and transported to hospital. He said that he arrived at the scene of the accident at about midday and it was a few miles on the southern side of Navua about 60 metres from the entrance to the Hyatt Regency Hotel on Queens Road towards Suva.

In cross-examination he stated that he was at the scene for over an hour. Police came later. He said the Suzuki was about 10 feet off the road or a little more from the edge of the tar-sealed road and right off the road. The white vehicle or Station Wagon was closer to Suva and in the middle of the road. The front part of the Station Wagon was facing towards Sigatoka at an angle towards the right coming from Suva. He said he was sure that each lane of the road was about 12 feet wide. He said that the white car was about 18 feet closer to Suva than the jeep.

The inside of the jeep had been pushed in so Mr. Byrne presumed that its right-hand side must have been damaged. He remembered very well that the front portion of the jeep where the Plaintiff's legs were had been pushed in under the dashboard where she sat. He was asked whether he could remember seeing any bottles or any oil or water spillage on the road but he said he could not.

The other witness called to describe the position of the vehicles after the accident was Ramasi Vitale who said that he had been asked to give evidence two weeks before the hearing. He lived at Lobau in a house about 10 steps from the main road. At the time of the accident he had been employed by the Fiji Electricity Authority but had now retired and lived on his farm. On the day of the accident he heard the noise of the impact and immediately went to the scene. There he saw a minibus parked in front of a white car on the Sigatoka-bound side of the road. He saw a red jeep turned on its side on the Suva-bound side of the road. He said the car driven by the Defendant was facing towards its right side or hill side of the road. The jeep was on the grass about 12 feet from the sealed edge of the road with its front facing towards Suva. It was on its left side. He said that in relation to the Defendant's car the jeep was lying more towards the Suva side of the road.

When he arrived at the scene he saw some broken glass and beer bottles on the road. The bottles had come from the jeep.

When it was suggested to him in cross-examination that all debris was closer to the hill side of the road he disagreed. He said broken glass was all over the road and that the Defendant's vehicle was lying at an angle about 30° towards Sigatoka. He rejected any evidence that the Defendant's vehicle had been facing at a right angle after the accident.

THE PLAINTIFF'S INJURIES

The Plaintiff suffered serious injuries as a result of the accident and these are set out in the various medical reports tendered on behalf of the Plaintiff and the Defendant. In addition, the doctor who looked after the Plaintiff in Suva intermittently and who accompanied her from Fiji to the Austin Hospital in Melbourne gave evidence as did the orthopaedic surgeon who treated her in Melbourne, Mr. J.D. Robin. I shall mention in some detail the evidence given by Mr. Robin and more briefly that of Dr. Prakash who was Surgical Registrar at the CWM Hospital at the time the Plaintiff was admitted there but an idea of the extent of the Plaintiff's injuries can be gathered from the report given by Dr. Prakash on the 13th of March 1992. These and her treatment on arrival at the CWM Hospital are as follows:

"(1) Fractured right clavicle.

(2) Ten centimetre long laceration on the forehead; deep, soiled with debris.

(3) Compound injury to left elbow - a ten centimetre laceration on left elbow, with comminuted fractures of lower left humerus and olecranon.

(4) Compound injury to right knee. A twenty centimetre laceration across the right patella exposing the knee joint and fragmenting the articular surface of lower femur.

(5) Laceration on the upper lip.

(6) Fractures of tarsal bones of left ankle.

(7) Pott's fracture of right ankle.

(8) Fractured right upper first incisor and left second lower incisor teeth.

(9) Concussion secondary to head injury."

The following treatment was given to the Plaintiff while she was in the CWM Hospital:

"(1) Vital signs were closely monitored for head injury.

Intravenous antibiotics were given. Tetanus Toxoid injection was given.

(2) Forehead laceration was cleaned and sutured.

(3) Compound fractures of left elbow: small bony fragments were excised and joint cavity irrigated with saline. P.O.P. (Plaster of Paris) Back Slab was applied to the left arm and forearm.

(4) Compound injury to right knee: all small fragments of bones were excised. Joint capsule was sutured. Patella wired and patella ligament repaired with nylon. P.O.P. Back Slab applied to right leg/thigh.

(5) Laceration on upper lip was sutured with catgut.

(6) Tarsal bone fractures was manipulated externally and Plaster Slab applied.

(7) P.O.P. Back Slab was applied to right leg/foot for stabilisation of right Pott's Fracture."

The report continues:

"Kylie continued to have intravenous antibiotics while in the ward. She recovered from concussion gradually, but still had residual effects seven days after injury.

She was transferred to Austin Hospital in Melbourne, Australia, on 10/5/87 for further specialised treatment.

I had looked after Kylie at the C.W.M. Hospital intermittently as a surgical registrar; and I also accompanied her to Australia as a medical escort (Kylie being disorientated; immobile, and bound to a stretcher.

During the Suva-Nadi-Melbourne journey, Kylie remained disorientated, although reacting to stimuli, was in pain due to her injuries, and needed continuous case for her drips and indwelling urinary catheter.

I had remained in Melbourne for at least a week; and it was only towards the end of the week in Australia that Kylie seemed to become better orientated. However, she still had a marked degree of retrograde amnesia.

Of all the surgical procedures done in Fiji, many were either redone and/or improved/modified at Austin Hospital (e.g. knee, foot and elbow fractures).

Kylie was expected to undergo a prolonged period of treatment and convalescence at Austin Hospital."

Dr. Prakash gave evidence confirming what he had stated in his report but elaborating on some parts of the report. He said that on part of the lacerations on the Plaintiff's forehead one could see her skull. He said that for the first three days in the hospital the Plaintiff was semi-conscious. On the fourth day the level of her consciousness improved so that she could respond to verbal stimuli but she remained disorientated for the whole of the week which demonstrated the severity of the injuries she had suffered. When she was transferred under the care of Dr. Prakash to Melbourne after a week she was still disorientated and in pain requiring continuous use of drips and urinary catheter. He said it was important to determine the urine output. Her mother had come from Melbourne to be with her after hearing of her accident, and he said that Mrs. Anderson's presence was a help to the Plaintiff in the hospital because she talked to her and aroused her. She had been taken from Suva to Nadi by road in a vehicle, the journey taking five hours because of the need to disturb the Plaintiff as little as possible. Dr. Prakash said that on the flight to Melbourne in addition to monitoring the drips and attending to the urinary bag the Plaintiff had to be given sedation injections to elevate her pains.

Mr. Joseph Robin gave evidence of the treatment he had given the Plaintiff following her arrival in Melbourne. Two reports of Mr. Robin to the Plaintiff's solicitors were tendered and I shall not refer to these reports in detail but will refer to part of his evidence in which he commented on not only his report but that of Mr. Peter Battlay another orthopaedic surgeon of Melbourne who examined the Plaintiff on behalf of the Defendant. Both Mr. Robin and Mr. Battlay are highly qualified doctors and are Fellows of the Royal Australasian College of Surgeons. On pages 3 to 6 of his report of the 13th of May 1992 Mr. Robin gives details of the Plaintiff's injuries as he found them. He there states his opinion:

"Following transfer to the Austin Hospital a week after the accident, she subsequently required seven operations to correct and improve the situation following the relatively primitive treatment received for these injuries in Suva, due to her severely precarious state from head injuries and septicaemia immediately following the accident. Following these multiple operations and extensive periods of rehabilitation, her condition now appears to be stabilised to a certain extent, although (see below) there will be some gradual deterioration particularly with respect to her left elbow and right knee in the future, due to the progression of degenerative osteoarthritis in these joints."

He then continues on page 6:

"Thus she remains severely disabled with respect to her left elbow and right knee and has considerable difficulty with mobility in normal everyday activities such as walking, climbing stairs, getting in and out of chairs and cars, and difficulties with recreational activities virtually eliminating all sports, apart from swimming, which she can only do with difficulty. Her left elbow problem produces difficulty with normal every day activities involving grooming, personal hygiene, dressing and household activities, not to mention those at work, despite which she is able to maintain a job as a Secretary for the moment. The prognosis for her left elbow and right knee injuries in particular is poor, and neither is likely to improve with time, or further surgical treatment, as outlined above, with the exception of the right knee which may subsequently be improved by replacement arthroplasty, if and when the time occurs that this is required. As such, her future life is similarly likely to be affected and hampered by these disabilities, with possible problems arising with respect to future jobs, and possibly matrimony, not to mention the existing problems of every-day function.

Her present permanent disability, assessed in percentage terms, with respect to her right shoulder is zero, with respect to the left foot is 5%, the right ankle and heel is 25%, the right knee is 85%, and the left elbow 90% disability. The total in terms of whole-body impairment being approximately a 50% to 55% permanent impairment. Note, this disability assessment does not take into account any other injuries such as dental or facial injuries, or the effects of her emotional or psychological state due to the pain, suffering and other effects of the trauma of the accident, which could considerably increase her whole-body impairment beyond that quoted by myself, which relates purely to her orthopaedic injuries."

In his report to the Defendant's insurer Mr. Battlay states:

"Ms Anderson has obtained less than optimum results from her left elbow and right knee cap fractures, which is likely to be due largely to the nature of the fractures themselves, but also contributed to by the delay in her obtaining definitive treatment.

Her left elbow has mobilized very poorly. The commencing osteoarthritis at the elbow joint is producing symptoms and is likely to continue to do so without potential for later surgical relief. The degree of flexion of the elbow is such that the non-dominant left hand cannot be brought to the mouth for eating, to the head to allow her to comb her hair, or to her neck to do up jewellery and the like. Symptomatic relief will only be obtained from taking anti-inflammatory medication. It is likely that the level of pain in the left elbow will increase with the advancement of degenerative changes at the joint. However, the range of movements is likely to be maintained.

The right ankle injury, while may lead to some discomfort, is not complicated by any secondary osteo-arthritis and bearing in mind the problem which she has with her knee, is unlikely to trouble her in the future, and not likely to require further treatment.

Ms Anderson's knee has mobilized poorly to the extent where she will have difficulty getting into and out of motor cars and difficulty driving a manual vehicle.

She has quite established patello-femoral osteo-arthritis, and this may require arthroscopic chonroplasty and/or patellectomy or patellar re-surfacing. However, these measures may not be undertaken in view of the likelihood that she will also develop lateral compartment osteo-arthritis at later age, with a possibility that she will require prosthetic replacement of the knee in later life, hopefully not before her 50's, as knee arthroplasties have a fairly limited life expectancy in an otherwise relatively active person.

She will be left with the alternative of taking anti-inflammatory medication, doing quadriceps strengthening exercises, and avoiding activity which stresses her knee, which would involve any sports with running and jumping. Swimming would be a reasonable option for her, and she should be medically encouraged to do this in order to keep fit.

There is no indication of any likely, long term repercussions from her seemingly quite significant cerebral concussion, and her facial scarring is no major, cosmetic significance."

In his evidence Mr. Robin stated that the fracture of the Plaintiff's right clavicle could easily be induced by the impact of a seat belt restraining the Plaintiff in an impact at high velocity. This was also indicated by the fact that she had peritoneal damage when admitted to the CWM Hospital.

He said that he had seen a number of road trauma victims at the Austin Hospital but considered that the Plaintiff's orthopaedic injuries were some of the most horrific he had seen.

Counsel for the defence submitted to me later that Mr. Robin had given exaggerated and unnecessarily colourful evidence of the extent of the Plaintiff's injuries. I do not accept this submission. It seemed to me as I observed Mr. Robin that as the Plaintiff's treating surgeon he was giving his honest opinion about the severity of her injuries which, it might be added, to a large extent was confirmed by Mr. Battlay. Shortly I shall mention the areas in which Mr. Robin and Mr. Battlay do not agree but no one can doubt that both doctors are satisfied the Plaintiff suffered severely in the accident.

Referring to the Plaintiff's left elbow Mr. Robin stated that x-rays showed that this was one of the most serious fractures he had seen caused by road trauma because both the connecting parts of the elbow joints are smashed into seven or eight pieces. This was serious because the skin was completely open for seven or eight centimetres communicating directly with the broken bone which thus increases the risk of infection which compounds the problem and the loss of stability of the joint together with the force of the impact seriously compromise the Plaintiff's ulnar nerve. He stated that the Plaintiff had no feeling in her 4th and 5th left fingers which was consistent with his opinion. He added that despite the ulnar nerve being moved forward the Plaintiff still had the same symptoms indicating some permanent damage. Mr. Robin then produced x-rays of the Plaintiff's right knee which he said showed there had been broken skin and penetration through the fracture of the patella then contaminating the knee joint and giving the risk of infection. He said a chunk had been knocked out as a result of the accident and the area had been contaminated by the outside air which seriously increased the risk of infection.

X-rays of the left foot showed it to be grossly swollen. The middle part of the foot had exploded on impact at the time of the accident due to it being squashed from front to back.

An x-ray which he produced gave a clearer view of the metatarsal or the bones on the flat of the foot which showed that they had spread.

Mr. Robin stated that the Plaintiff had undergone two operations in Suva under general anaesthetics in the space of a week which indicated the probable concern of the Suva hospital for her. Unfortunately the two surfaces had not been re-constructed as far as possible in one piece but had been joined in a way which would make union impossible; this had been caused by the hospital using the wrong technique. Mr. Robin said that if surgical wire were applied thus it can damage the cartilage and cause osteo-arthritis which had occurred in the Plaintiff's case. He said that damage to a cartilage can begin in a matter of a day and once begun is almost irreversible. Mr. Robin then said that by October 1989 that is, five months after the accident, the Plaintiff had already begun to get degeneration in the bones of the left foot. Normally in a person such as the Plaintiff this would not be expected until the age of about 60 but the Plaintiff was aged 22 at the time. He therefore said that he expected the Plaintiff to develop significant symptoms by the age of 40. This comment also applied to her left elbow which showed the beginning of osteo-arthritis or narrowing of the joints in October 1989.

The fracture of her right heel had caused a prominent lump of bone or spur to develop which, somewhat colourfully, he likened to standing on a Violet Crumble chocolate bar. As a result any shoe contact with the heel will rub over the site of the fracture where there is a scar. The Plaintiff's discomfort in her heel was consistent with this fracture.

Referring to x-rays of the Plaintiff's right knee and left elbow taken a week before the hearing of her case began Mr. Robin commented that in the left elbow the progress of osteo-arthritis in three years had become quite marked. This was true also of the right knee and confirmed Mr. Robin's opinion that the Plaintiff can never return to her normal life-style before the accident. Osteo-arthritis is now to be seen in the right knee as it is also in both feet and her right ankle although to a lesser degree than her right knee and left elbow. He said that her prognosis for the knee and elbow is quite bad without any future surgery. He expects the knee to stiffen and become more painful as well as the elbow which already is 90 percent stiff. He said that the Plaintiff must have her right knee treated, one method being by fusion which would leave the knee permanently stiff. This in turn would increase stress on the hip joint and thus lead to the likely development of osteo-arthritis there at an earlier stage.

He said that it would be preferable to replace the knee joint with an artificial joint which would reduce the pain and increase the range of movement but this would not be complete in the Plaintiff because of the nature of her trauma. He said that if this were done relatively early she would need further operations and in young people these tend to loosen their joints. He said that operations should be deferred until her 40s or 50s but if she got worse she may need to have them sooner.

He stated that the cost of a prosthesis for the right knee at the moment would be A$13,420.00. He said that this was the fee recommended by the Australian Government but not by the Australian Medical Association and that very few orthopaedic surgeons charge the Government rate now.

Mr. Robin said that since most knee replacements last 15 years he would expect the Plaintiff to need about two or three replacements on an assumed life expectancy of 76 years, currently that of an average female. The problem with artificial knee replacements in the case of the Plaintiff was that because of the reduced available normal bone left on which to anchor the prosthesis each subsequent knee operation becomes more difficult and less successful in the long run. So too does the risk of complications with each subsequent operation because of increasing scar tissue causing stiffness and an increased risk of infection. He said that when the knee cap is replaced all three bones comprising it - the femur and tibia surfaces - are cut and re-surfaced with an artificial component. Although now the fitting is wedged into the bone, which reduces the risk of infection, it cannot wholly do so because whenever a foreign matter is implanted in the body there is a risk of infection. If infection occurred the prosthesis would have to be removed to treat the infection. If infection cannot be eradicated (and this often happens) the only choices open to a surgeon are to stiffen the knee by arthrodesis or amputate above the knee in the worst possible case. Arthrodesis would shorten the leg by an inch or more and so this would have to be built up by a surgical shoe. This would increase stresses above and below the joint. In the Plaintiff's case the ankle and heel are the first to suffer because they are already affected.

Mr. Robin said that the Plaintiff could not do any work requiring increasing mobility, thus walking, climbing stairs, secretarial work with filing equipment below desk level will be difficult for her. In her daily living the simple task of combing her hair and other personal grooming will be difficult.

Good grooming is necessary in a secretary but her injuries would also make the Plaintiff a slower worker. Mr. Robin said that he found the Plaintiff refreshingly honest about what she can and cannot do. He said that she tends to play down her injuries which surprised him. This does not lessen her disabilities which are quite real. Mr. Robin stated that he had frequently dealt with patients who had suffered injuries to one or more of those parts of her body suffered by the Plaintiff but he had not seen many patients with all of these injuries. He said that compared with uninjured people, persons like the Plaintiff are naturally disadvantaged by their physical disabilities which prospective employers perceive and then reject such persons for employment. He stated that the Plaintiff's capacity to have a working life expectancy had been shortened appreciably because of her injuries. If she could have normally worked until the age of 60 he would expect her to have problems working beyond the age of 40 when she might then have to consider retirement. He was asked a question about Medicare in Australia and stated that any person who makes a claim for Medicare must sign a declaration about the possible involvement of a third party and if there is such an involvement a claim is not subject to a Medicare refund. By this Mr. Robin said he meant that under Medicare normally a patient would receive a refund of 75% to 85% of his or her medical fees but where a third party claim was involved as here there would be no refund.

Later the Plaintiff tendered a Medicare claim form which provides among other things that if a claim for Medicare benefits is in respect of services which are the subject of a claim for damages, the patient may apply for a provisional payment of benefits which however must be refunded when the claim for damages is successful.

Mr. Robin then referred to Mr. Battlay's reports. The first thing he observed was that Mr. Battlay made no mention of any cosmetic defect over the Plaintiff's right eye whereas she had one. Similarly he made no mention of any damage to her left ankle. Also Mr. Battlay stated that her right heel showed no deformity whereas Mr. Robin said that there is such deformity evident both x-ray and clinically.

I note here however that Mr. Battlay did say in his report of 13th November 1993 that the Plaintiff's right heel is tender at the site of the operation scar which makes her selective about the type of shoe which she could wear.

Lastly dealing with the Plaintiff's patella-femoral joint on her right knee Mr. Robin said all three sections of the knee joint are affected by arthritis and there was no question of it not developing.

At this stage the Plaintiff approached the bench and I observed a 10 to 12 centimetre long scar on the extensor aspect of her left elbow. Mr. Robin said that x-rays of this elbow showed that it is permanently bent. The Plaintiff has only 5° of flexion compared with the normal 160° and the elbow is stuck at between 70° and 75°. Here Mr. Robin strained on the Plaintiff's left arm in an attempt to get further extension but was unable to do so. He said that the 5° of extension prevents her from moving her arm behind her back or to comb her hair and it similarly affects her when drying herself after bathing. On her right knee there was an obvious transverse scar from the outer point of the right knee going around for about 20 centimetres. This already encompassed half the knee joint. He said that the important thing about her right knee joint was that it grates (crepitus) and that the back of the knee cap is rough and arthritic compared with the left which is completely smooth. He said that it would be reasonable for the Plaintiff to have analgesics for her pain and anti-inflammation medication which will increase as she would grow older. He said that most anti-inflammation medication today carries with it the risk of gastric ulceration or haemorrhaging. He said it was quite possible for a patient to develop a tolerance to such medication which then reduces the effect of the medication and means that the dosage must be increased to get the same effect.

Mr. Robin then pointed out to me the bulge in the Plaintiff's right heel caused by the removal of the part of the heel. I remarked that it was very noticeable. He stated that the force of the impact in the accident forced her left foot to bend to an angle of 45° which increased the arch forcibly and broke it across the top. The Plaintiff can expect increasing pain in her left foot and right heel. The injuries also affect her capacity to wear closed shoes. The injury to her left arch makes it difficult for her to get into high heeled shoes which meant that basically she was limited to wearing flat or low heel shoes whose straps do not rub on those areas.

Mr. Robin then referred to the Plaintiff's head injuries and said that she had suffered brain injuries. During his training experience he had had extensive experience in treating head injuries and said the Plaintiff had clear evidence of brain injuries when she arrived at the Austin Hospital. This was because of her confused state of mind, drowsiness and significant periods of retrograde and post traumatic amnesia. She had between 15 and 30 minutes of retrograde amnesia and at least two days of post traumatic amnesia. Fortunately however she had recovered from the brain injuries.

When cross-examined Mr. Robin said that if the accident had happened in Melbourne and the Plaintiff had been taken to the Austin Hospital immediately she would have received different treatment. Her wounds would have been more extensively debrided. He agreed that the Plaintiff was still a very pretty young woman who appeared to be able to climb the stairs to the Court. He believed that she could groom her hair and could manage alternative ways of doing things. He said that although there is high degree of unemployment in Australia the Plaintiff was fortunate that she had a job waiting for her.

The Plaintiff's mother then gave evidence and stated that before the accident the Plaintiff's teeth were perfect and that she had played tennis, attempted snow skiing, attended a gymnasium and enjoyed her life. While she was with her in hospital the Plaintiff had to have her dressings changed and be screened when she was handled or touched. She said that the Plaintiff became very angry in the hospital because of the indignities associated with the catheter. She was very conscious of the way she looked and previously took pride in her appearance. She refused to let photographs to be taken and put her hand over the lens. Two photographs were tendered of the Plaintiff, one taken in 1982 when the Plaintiff was about 18 and the other taken in the CWM Hospital on the day she left Fiji.

In cross-examination Mrs. Anderson said the Plaintiff was able to drive still but she had difficulty in changing gear and she also had difficulty in washing and ironing.

The Plaintiff herself then gave evidence. She recalled being taken out of the aircraft at Tullamarine Airport and being put on a food trolley and then placed in an ambulance. She showed me the cut on her hairline which is 1½ inches long and extends into the scalp for about ½ inch but which is barely visible. She has a ragged scar from about ¼ of an inch above her right eyebrow to just above the right eyelid which is about 1¼ inches long. She has one false tooth on her lower jaw and a bridge over these teeth on the top jaw. She said that she became fully oriented again while in the Austin Hospital where she had fairly intense pain all over her. Her left arm was immobilised because she was in traction. For much of the time she had a full leg cast from the top of her right thigh to her toes and from the knee to the tip of her toes on her left leg. She had been given pethidine regularly every four hours and morphine when she came out of the operating theatre on her first admission to the Austin Hospital. She was also given morphine after every operation and an injection of Heparin, an anti-coagulant given to people in hospital for lengthy periods. She said that she was not able to resume normal food until she went to the Royal Talbot Convalescence Hospital. Because of her dental injuries her teeth could not be restored until after 4 or 5 months after the accident and the dental treatment she received caused her a great deal of pain until the final bridge of 6 teeth was completed. She said that she was self conscious about the bridge on her teeth and of the scars on her face particularly that on the right eye which could not be covered. She said that knocking her left arm causes pains for two days. For a long time she had no feeling in her little and ring finger on the left hand but now she had tingling in those fingers. She was in constant pain in her right leg and took anti-inflammation tablets daily. These cost her $182 a year. She said that walking down the stairs caused her pains, when she wakes every morning she had pain in her right knee and ankle. She puts a pillow under her foot and knee. Now she can no longer do any distance walking without pain. When showering she has to hoist her leg over the shower recess as she also does so when getting into a car. She cannot now get into the back seat of the car. When sitting her knee stiffens and she tries to avoid uneven surfaces when walking. Crouching or bending to pick up things from the floor is difficult and she confirmed what Mr. Robin had said about her difficulties in wearing shoes. She said that she could not afford to have shoes especially made because these cost $700 a pair and even shoes for disabled people sold in the shops cost $200. These were not very smart and unsuitable for a 28 year-old girl. She said she was off work full time for just short of a year. She said that changes in temperature caused her pains. Very cold winds cripple her and humidity such as we had in Suva at the time of trial made her feel worse. I observe here that the Plaintiff lives in Melbourne whose winters can be very severe.

She said she enjoyed her work at Avis-Rent-a-Car because it was very diverse and she was good at it and expected to be able to do it in the foreseeable future. There were also opportunities available for promotion.

In the first winter after her accident she had gone to Surfers Paradise by transfer by Avis but felt devastated when her boss told her she was disabled. She said that she does not tell people about her injuries because she does not want them to think she is disabled. She says that she makes excuses for her injuries all the time and always has her hands in a pocket or her arms folded to hide her disabilities. She said that people often ask her the cause of her limp and scars but she hates telling them. When she returned to Melbourne after Surfers Paradise she began work with Luke Air in January 1990 and remained in this employment until September 1993. Her office was at the back of the building but her work involved too much walking and stair climbing. Her pain affected her ability to work. She preferred working with Avis because she had more variety and met more people. She told me that she could no longer ride bicycles or swim and felt she was a burden on people.

At this stage the Plaintiff began to weep and said that she did not think about her future because she did not want to. She had been educated at the Brighton Girls School and had been brought up in a stable, comfortable middle class environment.

At this point I adjourned the hearing until the next day and on the resumption the Plaintiff said that when she returned to Melbourne after the case she would join a hotel owned by some friends in promotion and marketing work and will probably be based at the hotel. She did not agree with Mr. Battlay's reference to her having a de facto relationship with her boyfriend and his comment that she was not anxious or depressed. She stated that Medicare had paid provisionally 75% of Mr. Robin's account only on the understanding that they would be reimbursed. She stated when re-examined that she could not afford an automatic car which she would prefer. Such a car costs $1,500 to $2,000 more than a manual. She said that in the future if she could afford it she would buy automatic cars. Usually she kept cars for two years but has had the present car for five years. If she kept a car on an average of four years she would expect to pay an average of $500 per annum extra for cars during the rest of her life. She also complained that Mr. Battlay did not give her as full an examination as Mr. Robin, in particular that he did not try to induce any movement in her feet or her leg except for the movement she could show herself. However he did do as Mr. Robin had done when trying to get movement in her arms. That concludes my summary of the medical evidence. I pass now to the pleadings.

THE PLEADINGS

It is necessary to refer to the pleadings in this case because they were the subject of some adverse comments by defence counsel in his submissions. The evidence of Liam Sears who said that he considered the Defendant was much to be blamed for the accident because he had attempted to pass another motor vehicle when it was unsafe to do so and thus put the Plaintiff in a position of danger which she could not avoid was the main reason for these comments.

It must be said that the pleadings both of the Plaintiff and the Defendant in this case are somewhat lacking in particulars. Neither the original Statement of Claim dated the 27th of September 1989 nor the amended Statement of Claim dated the 13th of December 1990 make any allegations about the Defendant attempting to pass another vehicle when it was unsafe to do so and thereby coming on a collision course with the Plaintiff. There are general allegations of failing to keep a proper look out; driving at an excessive speed; failing to apply the brakes on his motor vehicle either in time to avoid the collision or at all; failing to so steer and control his vehicle as to avoid the collision; failing to give any warning when approaching a motor vehicle to the point of collision and failing to give the right of way to the Plaintiff's motor vehicle.

Likewise the Statement of Defence is somewhat short on detail although it does allege that the Plaintiff was driving on the incorrect side of the road in the face of the Defendant's on- coming vehicle. There is no allegation to accord with the evidence given by the Defendant that the accident was caused by the Plaintiff attempting to pass another vehicle ahead of her and thus coming on to her wrong side of the road so as to collide with the Defendant's vehicle. The purpose of pleadings is in the words of Jessel M.R. in Thorp v. Holdsworth (1876) 3 Ch. D.637, 639:

"To bring the parties to an issue, and to prevent the issue being enlarged, which would prevent either party from knowing when the cause came on for trial, what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to definite issues, and thereby to diminish expense and delay, especially as regards the amount of testimony required on either side at the hearing."

As Brennan J. said in Banque Commerciale S.A. En Liquidation v. Akhil Holdings Limited (1990) 169 C.L.R. 279 at 288:

"When the pleadings bring the parties to the issue, the court's function is to determine that issue and to grant relief founded on the pleadings unless the parties are allowed to alter the issues at the trial without amendment of the pleadings (as to which, see the observations in London Passenger Transport Board v. Moscrop (29)). The rule is clearly laid down in the judgment of this Court in Dare v. Pulham (30 (1982) 148 C.L.R. 658, at p.664:

'Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings (Gould and Birbeck and Bacon [v. Mount Oxide Mines Ltd. (In Liq.)] (31); Sri Mahant Govind Rao v. Sita Ram Kesho (32)).'"

In motor accident cases of this nature before my appointment to the Bench it was my practice and that of my contemporaries when pleading particulars of negligence if it was alleged that an accident was caused by the attempted passing of another vehicle when it was unsafe to do so to plead this particular specifically.

I also note that in Bullen & Leake & Jacob's Precedents of Pleadings, 13th Edition on page 813 in a sample precedent dealing with a similar situation to that in this case, overtaking or attempting to overtake another vehicle when it was unsafe to do so is pleaded as a particular of negligence.

In this regard as I have said both the Statement of Claim and the defence are deficient but I do not consider that that of itself warrants my striking out the Plaintiff's claim in this case.

When the Plaintiff's counsel opened her case he stated the evidence that he expected Liam Sears would give, namely that he observed a motor vehicle travelling towards the Plaintiff on its correct side of the road and being followed by a motor vehicle driven by the Defendant. Shortly before the collision the Defendant moved to overtake the vehicle in front of him when there was no possible room to do so because of the presence of the Plaintiff on the road.

If the situation were as counsel for the Defendant now would have the Court believe that the Defendant was taken by surprise by this statement because there was nothing in the pleadings to support it, I would have expected defence counsel to immediately object to counsel for the Plaintiff making such a remark. Instead counsel for the Defendant remained silent.

If this silence could be excused at that time, which I doubt, then I find it more surprising and now unconvincing that as soon as Liam Sears began to give evidence in this vein counsel for the defence again failed to make any objection.

It would have been open to the Defendant either after counsel for the Plaintiff opened on this subject or when Mr. Sears began to give his evidence on it to have drawn the Court's attention to the state of the pleadings and objected to the evidence being given. Counsel for the Plaintiff would then have had to decide whether he should apply to have the pleadings amended. In my judgment the Defendant's objection has come far too late. All the evidence in the action is now in and the first time objection is taken to the pleadings in this regard is in the first defence submission dated the 23rd December 1993, nearly one month after the trial concluded.

In my opinion the case is on all fours with that referred to by Mr. Justice Brennan in Banque Commerciale v. Akhil Holdings Limited, namely Dare v. Pulham. In my view it is clear the parties here chose to disregard the pleadings and to fight the case on issues chosen at the trial. I therefore reject this submission.

LIABILITY

As I said at the beginning both parties presented completely opposite accounts of the circumstances which they said caused the accident, in each case alleging that this was due to the attempt by the other to pass another preceding vehicle when it was unsafe to do so.

Having observed all the witnesses I prefer the version of the events given on behalf of the Plaintiff. The Defendant submits that I should disbelieve Liam Sears' evidence because he has allegedly a vested interest in the outcome of this case because he himself is suing the Defendant for damages for his own injuries in Civil Action No. 140 of 1990 and is therefore biased against the Defendant. It is submitted that because Liam Sears has not sued the Plaintiff, if the Plaintiff is held responsible for the accident he would not be able to recover against the Plaintiff as he is now statute barred. I do not accept this submission. In my view the probable reason for Mr. Sears electing to sue the Defendant and not the Plaintiff or the Plaintiff and Defendant jointly is based on professional advice which I have little doubt he received. It is stated that Julie Davidson and the person sitting opposite him Nathale Florin were in conversation at the material time but Mr. Sears stated quite definitely that he was looking ahead when he saw the Defendant's vehicle approaching and that Julie Davidson's head was not obstructing his view. Counsel for the Defendant claims that in cross-examination Mr. Sears said that the Defendant's vehicle had proceeded to return to its correct side of the road and at the time of the collision his (the Defendant's) vehicle's left head light was on the middle of the dividing line.

My note of this evidence is: "The Defendant's vehicle was still accelerating to return to his lane in front of the truck. He was not slowing or swerving to the left". Shortly afterwards he said this: "The Defendant was speeding to return to his lane in front of the truck. He did manage only partly." It is interesting to record that when he was cross-examined Mr. Sears stated vehemently that the Defendant was definitely on the wrong side of the road and that there was insufficient room on the left hand side for the Plaintiff to go through. He said, "I am very positive about this." In my record of the evidence I made a note beside this to this effect, "Good witness re-this".

Re-reading the evidence for the purpose of preparing this judgment that is still my recollection of the witness Sears. Furthermore it is corroborated in my view by the evidence of John Francis Byrne as to the relative position of the vehicles driven by the Plaintiff and Defendant after the accident. Mr. Byrne said "The white car was closer to Suva. I am definitely sure by approximately 18 feet." He then rejected a suggestion that the Plaintiff's vehicle was closer to Suva and said again, "In my opinion the white vehicle was closer to Suva."

An extraordinary statement was made by defence counsel on page 13 of his written submission of 23rd December 1993 that John Byrne had given evidence that the Warwick Hotel was about 60 miles away from the place of the accident. Counsel then proceeds to claim that if this were true it would mean the Plaintiff was travelling "at the phenomenal speed of 240 miles per hour". This is a glaring mis-statement of Mr. Byrne's evidence. He said near the end of his examination in chief that the accident happened "60 metres from the Hyatt Regency towards Suva".

Counsel do not assist the Court or their client by making such errors in the quoting of the evidence.

Turning now to the evidence given by the Defendant I have formed the opinion that he was not wholly frank with the Court. It was put to him in cross-examination that he had made a written statement to his insurer about the accident which contained no suggestion that the Plaintiff had been overtaking another vehicle immediately before the accident. When counsel for the Plaintiff asked for the production of this statement defence counsel immediately objected on the ground of privilege and I upheld this objection. However in my view the failure by the Defendant to produce the statement when called on must raise doubts about the credibility of his evidence. In Jones v. Dunkel (1959) 101 C.L.R. at p.320 (1959) A.L.R. at p.381 Windeyer J. cited Wigmore on Evidence 3rd Ed. (1940) vol. 2 s. 285 p.262. which reads as follows:

"The consciousness indicated by conduct may be, not an indefinite one affecting the weakness of the cause at large, but a specific one concerning the defects of a particular element in the cause. The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanations by circumstances, which make some other hypothesis a more natural one than the party's fear of exposure; but the propriety of such an inference in general is not doubted."

In my judgment, although the Defendant was entitled to object to the production of the statement to his insurer and I ruled in his favour on this, nevertheless I cannot refrain from inferring that the Defendant's objection indicated his fear that the statement if produced would have exposed facts unfavourable to him. I am at a loss to understand why the Defendant should have refused to produce what must surely have been only a self-serving statement.

Likewise I note the objection by the defence to the production of the Police Report on the accident. Undoubtedly there was one but for reasons unexplained the Police were not able to produce it as primary evidence. However the report was in the possession of the Plaintiff and was discovered by her and appears as document A to Schedule I, Part I of her Affidavit of Documents dated the 5th of August 1993. Again I ask myself why should the Defendant have been so reluctant to allow evidence to be given of a report of whose contents he and his advisers must surely have been aware? The answer escapes me. This reluctance on the part of the Defendant to produce what could well have been relevant documents is a factor which leads me to have doubts about the credibility of the Defendant as to the cause of the accident and leads me to prefer the evidence given for the Plaintiff on this question.

In this regard I should say that of the two witnesses who came on the scene shortly after the accident I prefer the version given by John Francis Byrne. He gave his evidence in an objective manner and the fact that he placed the Defendant's vehicle at a point closer to Suva than that of the Plaintiff and the Plaintiff's vehicle a distance of about 10 feet off the edge of the Suva-bound carriageway supports the evidence given by Liam Sears. Mr. Byrne said that the Plaintiff's vehicle was wholly off the road facing towards its left at right angles or a little more than right angles and towards Sigatoka. His other evidence that the damage to the Suzuki appeared to be concentrated on its right hand side indicates to me that the Plaintiff was driving on the correct side of the road at the time of collision and the Station Wagon driven by the Defendant was on the middle of the road, as I find, trying to pass another vehicle immediately before the accident. I also note that John Francis Byrne was not shaken in his evidence that the concentration of the debris was on the Suva-bound carriageway although he conceded the debris was scattered all over the road.

This does not surprise me when it is realised that if one accepts the evidence as to speed given by Liam Sears and the Defendant the combined approach speed of the two vehicles would have been approximately 140 kilometres an hour or approximately 85 miles per hour under the old imperial measurements. With an impact of such speed I am not in the least surprised that debris should have been scattered all over the road but undoubtedly, to use the expression of Mr. Robin in another context, there must have been an "explosion" of debris at the time of impact.

Whilst I accept that Ramasi Vitale gave his evidence to the best of his recollection I remind myself that he was first called on to give evidence only two weeks before the trial. I also note that he is aged 60 and that the accident occurred nearly 7 years ago. Consequently I prefer the evidence of John Francis Byrne which seemed to me to be given more objectively than that of Mr. Vitale. On this point I also reject the rather guarded suggestion by the Defendant that alcohol could have been a factor in this accident. In my judgment there is no justification for such a finding. Having considered the evidence given I find that the Defendant is wholly to be blamed for this accident on the ground that shortly before the accident he attempted to overtake another vehicle when there was neither time nor space to do so and that his negligence was the cause of the accident. I make no finding of contributory negligence against the Plaintiff.

Before concluding this part of the judgment I should comment briefly on the submissions made by both counsel on the failure of either party to call a particular witness. In opening the case for the Plaintiff her counsel stated that the Plaintiff intended to call the driver of a bus which was following the Plaintiff's vehicle, one Subarmani Murgassa who would testify that the Plaintiff was travelling at a moderate pace on the correct side of the road when he saw the Defendant's vehicle travelling at high speed cross over from its correct to its incorrect side of the road and collide with the Plaintiff's vehicle. It was said that Mr. Murgassa, who was apparently outside the Court, would say that he had no recollection of seeing the Defendant's vehicle overtake another vehicle before the accident.

Mr. Murgassa was not called to give evidence and defence counsel invites the Court to conclude from this that there were "grave contradictions in the Plaintiff's case".

Counsel for the Defendant comments that it is not surprising that Mr. Murgassa was not called in that he would have "contracted" (sic) Liam Sears version of the accident.

I cannot agree with counsel for the Plaintiff who said that Mr. Murgassa appears to have been truly independent. There is no evidence of this and such an assertion could only be justified after observing Mr. Murgassa in the witness box and assessing his quality as a witness under cross-examination. However I do not draw any adverse conclusion against the Plaintiff merely by her failure to call Mr. Murgassa to give evidence.

Under our adversarial system during the course of a trial legal advisers frequently have to make decisions to whether or not a particular witness or witnesses will be called to give evidence. The decision to call or not to call a particular witness is usually one of tactics for which various explanations are doubtless open. One of these most frequently in my experience is the opinion formed by a party's advisers whether a particular witness is likely to advance the party's cause any further. It may be that the Plaintiff's advisers concluded that the evidence of Mr. Murgassa would not add much to that already given on behalf of the Plaintiff.

In my view this submission lacks any merit.

Here it might also be pertinent to ask why the Defendant failed to call his wife who was apparently seated in the front seat of the vehicle with him. This may well have been done as a matter of tactics by the Defendant or there may have been a perfectly reasonable explanation for the failure to call the wife. I do not propose to speculate as to the reasons and I draw no adverse inference against the Defendant for not calling her.

DAMAGES

I have stated in some detail the injuries suffered by the Plaintiff. There can be no doubt that they were very severe and where there are differences between the evidence given by her treating orthopaedic surgeon Mr. Robin and the evidence contained in the medical report submitted by the Defendant from Mr. Battlay I prefer that of Mr. Robin. He was subjected to searching cross-examination by counsel for the Defendant and in my estimation came through this as a convincing witness. I do not agree with the submission of defence counsel that he appeared to be "emotionally charged when giving evidence". My impression of Mr. Robin was that he was concerned about the severity of the Plaintiff's injuries with which of course he was very familiar having been her treating surgeon ever since she was admitted to the Austin Hospital.

There are grounds for believing that Mr. Battlay's examination of the Plaintiff was more hurried than those of Mr. Robin which in a sense might be accepted since he apparently conducted only one examination whereas Mr. Robin has examined and treated the Plaintiff on numerous occasions.

In particular I note Mr. Battlay's comment that "the left elbow can be fully extended". Having observed Mr. Robin's demonstration on the extent to which she could extend her elbow, I have no hesitation in rejecting the opinion of Mr. Battlay on this. Further, as pointed out, Mr. Battlay made no mention of the scar over the Plaintiff's eye, to the injuries to her left foot, to the degenerative changes in the right sub-tarsal joint and the existence, not possibility, of lateral compartment osteo-arthritis in the injured knee.

A fair summary of the Plaintiff's present situation is that she has a useless left elbow with painful degenerative changes, a right knee which will require replacement and established osteo-arthritis in both ankles. In addition to this she had a head inquiry which has left her with scarring and severely damaged teeth.

In short here we have a young lady in the bloom of her youth facing a life-time of deprivation of her normal expectations of her salad days, that is, loss of enjoyment from dancing, walking, sporting activities, and all those pursuits which are so important to the young. She has been left with visible physical deformities which in themselves can be devastating since there is no horror worse to the younger generation especially the females - than to be different from their friends. This difference, in itself, will cause her severe psychological pain.

I have to view the injuries the Plaintiff has suffered as one whole, and cannot separate the different components.

I have considered the submissions on damages made by counsel for the parties. In my view the case calls for a substantial sum by way of damages for pain and suffering and loss of amenities of life.

In assessing what damages she should be awarded I bear in mind that the task of the Court is to provide the Plaintiff with a fair compensation to accord with her needs. That this fair compensation could be achieved, it is incumbent upon a tort feasor to take his Plaintiff as he finds him. In this case the Plaintiff lives and spends her money in Australia. It was by sheer coincidence that her accident occurred in Fiji. There can be little doubt that she will spend the proceeds of any award in Australia, her own country. As the High Court of Australia said in Planet Fisheries Proprietary Limited v. La Rosa & Anor. [1968] HCA 62; (1968) 119 C.L.R. 118 at p.125:

"The principle to be followed in assessing damages is, in our opinion, not in doubt. It is that the amount of damages must be fair and reasonable compensation for the injuries received and the disabilities caused. It is to be proportionate to the situation of the claimant party and not to the situation of other parties in other actions, even if some similarity between their situations may be supposed to be seen."

It is submitted on behalf of the Plaintiff that had she suffered her injuries in Australia, there would be no doubt that she would be eligible for a verdict of approximately A$250,000.00 for pain, suffering and loss of enjoyment of life. This may be true but there is no evidence that the Plaintiff would be eligible for such an award and I therefore reject this submission as it stands. However likewise I cannot accept the submission on behalf of the Defendant that because the Plaintiff submitted to the jurisdiction of the High Court of Fiji the Court must make an award comparable to other awards made for similar injuries in Fiji.

I have considered cases cited to me by the Defendant and note that in none of them were the injuries sustained as serious as those suffered by the Plaintiff. The closest to the Plaintiff's case appears to be Anitra Kumar Singh v. Rentokil Laboratories Limited, Civil Appeal No. 73 of 1991 in which in a judgment on the 20th of August 1993 the Court of Appeal increased to $60,000.00 an assessment of $25,000.00 for general damages for injuries sustained in a motor vehicle on the 16th of July 1988.

The injuries are set out on page 4 of the judgment. I observe that on page 12 when discussing the range of awards in Fiji for various types of injuries the Court said:

"With rare exceptions they are well below the figures we might think appropriate at this time August 1993 or at the time judgment in this Action was given, October 1991."

I agree. Figuratively speaking it is high time the award of damages in Fiji for personal injuries threw off its swaddling clothes and faced the reality of the real world. The Court of Appeal endorses this view.

It is possible that the Plaintiff, being now so young, may yet survive for at least another 50 years, for many of which her doctors say she could be unemployable. I have endeavoured to ensure her financial future by providing an award which would allow her, when the time comes, to set herself up in a small business, such as a secretarial agency or a tea-shop or a small business of her choice.

In my judgment the country in which it is expected the Plaintiff will use any damages she receives from this Court is relevant to the amount of those damages although I do not say it is decisive. It is a factor which the Court must consider. I observe that in none of the cases cited to me by the Defendant did the Plaintiff intend to spend his or her damages outside Fiji. In two leading decisions of the 1970s, Dillingham Corporation of New Guinea Pty. Ltd. v. Constantino Alfredo Diaz (1975) P.N.G.L.R. 262 and Kerr v. Motor Vehicles Insurance (P.N.G.) Trust (1979) P.N.G.L.R. 215, the Supreme Court of Papua New Guinea recognised that expatriate Australians receiving judgments for damages in Papua New Guinea would return to Australia where they would have to pay for their enjoyment of life and the costs of commodities and services at Australian prices. For the Court to hold otherwise would be to fail to follow the basic principle that the measure of damages should, as nearly as possible put a Plaintiff back in the same position as if she had not sustained her injuries. The Court of Appeal in Anitra Kumar Singh v. Rentokil Laboratories Limited recognises that the level of damages in our neighbouring countries is persuasive but not decisive - see judgment page 13.

Applying these principles to this case I consider an appropriate award by way of general damages is $85,000.00. To this there must be added agreed special damages in medical expenses of $37,792.00 for the Austin Hospital and Mr. Robin's expenses $2,567.33, Dr. Gillmore's charges for anaesthesia of $700.00 and dental expenses of $9,107.00 all of which are also admitted.

Under the heading "Additional loss associated with Injury" the Plaintiff claims the following:

Vehicle Hire Charges thrown away $100.00

Cash lost as result of accident 150.00

Damaged clothing 300.00

Cost of returning to Australia for

treatment not available in Fiji:-

Attending doctor on flight

(Dr. Prakash) 1,412.00

Stretcher charges - Qantas 2,015.00

Mrs. Anderson - airfares and

accommodation 2,051.00

Surfers Paradise Physiotherapy 200.00

$6,228.00

The Defendant disputes all of these costs except those for Dr. Prakash's flight expenses of $1,412.00, stretcher charges and a sum of $200.00 for Surfers Paradise Physiotherapy. I agree that it would be unfair to the Defendant to allow the Plaintiff the amount of $150.00 claimed as cash lost as a result of the accident. In my view it would not be reasonably foreseeable by the Defendant that human vultures would rob the Plaintiff of cash she was carrying at the time of the accident. However I regard damage to clothing as a reasonably foreseeable item of damage and I recall the medical evidence that she was suffering of hypo-volaemic shock when admitted to CWM Hospital in Suva and the evidence of John Francis Byrne that the Plaintiff was bleeding from her nose and mouth and looked generally bloody. I therefore allow the sum of $300.00 as claimed.

The Defendant disputes the claim by the Plaintiff's mother for airfares and accommodation of $2,051.00.

Defence counsel describes Mrs. Anderson's desire to be with her daughter when she was informed of the accident as a luxury which should not be placed at the door of the Defendant. I disagree. I regard such expenses as a species of medical expenditure and conducive to the well-being of her daughter. I have no doubt that it was the presence of the Plaintiff's mother in Fiji which helped the Plaintiff recover consciousness in the CWM Hospital. I therefore allow these charges. In the result the only amount I disallow of the $6,228.00 claimed under this heading is $150.00 leaving the sum of $6,078.00 to be paid by the Defendant.

Loss of earnings of $14,421.95 is agreed giving a total of special damages which I award to the Plaintiff of $70,666.28.

The Plaintiff also claims damages for loss of future earnings and future medical expenses. I accept that the Plaintiff will probably require a knee joint replacement at the age of approximately 35 or 40 years. This will necessitate her being hospitalised for a period of approximately 10 to 14 days and thereafter a period on crutches of approximately 4 to 6 weeks. I accept also the probability that she will need further knee joint replacement at the age of 55 years, given the life expectancy of a knee joint replacement as approximately 10 to 15 years which I note is not disputed by the Defendant.

According to Mr. Robin at the present time the total cost of a knee prosthesis is A$13,420.00. I would expect this to rise to approximately A$14,000.00 by the time the Plaintiff requires it. Assuming total cost to be $28,000.00 and that Medicare will pay 75% of this I allow the Plaintiff $4,500.00 for this item. Again it is impossible at this stage to estimate any loss of wages she may suffer during this term or indeed whether she will still be employed. If she is employed then I consider it would be reasonable to allow her five weeks loss of income at the rate of $300.00 net per week which is approximately the amount admitted by the Defendant she lost in wages for 47 weeks she was off work following the accident. For this item I allow $1,300.00.

The Plaintiff claims, and I have little doubt, that she would be more comfortable driving an automatic car because of her injuries. She estimated the cost of such a car at the present time would average $500.00 per annum over five years the period for which she said she normally keeps a car. I consider it reasonable to allow the Plaintiff something for this and the amount I award is $8,400.00.

The Plaintiff claims future economic loss amounting to $500.00 per week and submits that I should allow a significant amount of years for which she would be unable to work, based on the unchallenged evidence of Mr. Robin in that regard. No reason is given to justify the sum of $500.00 per week; I expect it is based on a prediction of wage rates in Australia at the time the Plaintiff is expected to have problems in employment which Mr. Robin stated would probably begin after the age of 40. There is of course a considerable element of speculation and conjecture in this. To a large extent the Plaintiff has been moderately fortunate in that she so far has not suffered any real loss of earning since she ceased work in September 1993 to prepare for the trial of this action. However I am satisfied that while she was employed after the accident she worked under some stress and no little inconvenience. There is a possibility which I can not discount and that is that the Plaintiff will either marry her present boyfriend or someone else in the future and so not be self-dependent for her support. She stated that when she returned to Melbourne after the trial she would be taking employment with friends in a hotel in promotion and marketing work but there is no evidence as to the wages she expects to receive in such employment. I am also satisfied that other forms of work are probably open to the Plaintiff for example starting a secretarial agency, or a small cafe or tea-shop where most of the physical work could be performed by employees thus not requiring the Plaintiff to do much walking, climbing or bending.

Basing myself on Mr. Robin's opinion as to her employability I consider it would be reasonable to award her $10,000.00 under this heading which, in addition to her general and special damages and the interest I shall allow thereon should give her a reasonable sum to invest immediately and the capital and accrued interest which should be sufficient to enable her to buy or start a small business of the kind I have indicated when she believes the time is right to do so. This leads me to the question of interest.

INTEREST

There is surprisingly little authority on this subject in Fiji. It has been customary to award successful Plaintiffs interest at the rate of 4% from the date of the issue of the Writ until the date of trial on special damages. Allowing the Plaintiff 4% on her special damages gives her $11,312.00 approximately. Taking the total special damages and interest to the nearest hundred I award her $82,000.00 under this heading.

The question of interest on general damages is more difficult. In Jefford v. Gee [1970] EWCA Civ 8; (1970) 2 Q.B. 130 the English Court of Appeal considered this matter and held that the rate of interest payable on general damages should be that which is payable on money in Court which is placed on short term investment account. The Court then noted the interest rates for the five years up to the trial of the action which varied from 5 to 7% and allowed the Plaintiff an average of the rate obtainable on short term investment of 6%.

In the present case I took oral submissions from counsel on this question on the 18th of April 1994. Under Section 3 of the Law Reform (Miscellaneous Provisions) Act Cap. 27 the Court may, if it thinks fit, order interest to be payable on the sum on which judgment is given at such rate as it thinks fit on the whole or any part of damages awarded, for the whole or any part of the period between the date when the cause of action arose and the date of the judgment. Counsel for the Plaintiff submitted that the rate of 10% from the date of the issue of the Writ until the commencement of the trial was appropriate whereas counsel for the Defendant submitted that the rate should be 2%. This is less than the amount awarded on special damages which he did not dispute.

Applying the principle approved in Jefford v. Gee I consider it would be fair to award the Plaintiff 7% interest on her general damages of $85,000.00, that is the sum of $23,800.00.

It was argued by counsel for the Defendant that I should not allow interest for the whole four years because of delays on the part of the Plaintiff in amending her Statement of Claim and a change of solicitors.

The Court of Appeal of New South Wales considered this in Bennett v. Jones (1977) N.S.W.L.R. 355 Hutley J.A. rejected a similar argument and said this at pp 375-376:

"I am by no means convinced that the conduct of the parties should ordinarily affect the award of interest. If the fault is that of the defendant, the plaintiff is adequately compensated by the award of interest in respect of that part of the award which is not apportioned to pain and suffering, and gains the benefit of inflation in the assessment of damages for pain and suffering. If inflation is brought under control, the same considerations will apply, as the interest in the whole award of damages will then fall to the traditional rate which was the rate appropriate to the cost of retention of money alone. If the plaintiff is at fault, as in this case, and the defendant is an insurance company equipped to use funds in the various money markets, it gains from the plaintiff's delay. If the plaintiff does not comply with the rules, it can move to force the expedition of the proceedings or to have them struck out for want of prosecution. If an insurer, with its resources and professional knowledge, neglects to take steps to force the plaintiff to the barrier, I do not see why the court should not assume that it was considered by it to be the course most advantageous to itself."

In my view it would be unfair to deny the Plaintiff interest for the full period for the reasons given by Hutley J.A. and because any interest awarded should do no more than put the Plaintiff into the same position as if payment had been made at some earlier time, no matter how far back that was.

To summarise, the award I make for the Plaintiff will be:

Pain and suffering and loss of amenities - $85,000.00

Interest thereon - $23,800.00

Special damages and interest - $82,000.00

Loss of wages for replacement of knee

cap estimated - $1,300.00

25% of cost of knee cap replacement - $4,500.00

Loss of future income - $10,000.00

Extra cost of automatic cars - $8,400.00

$215,000.00

The total award of $215,000.00 may appear high by Fijian standards, but if one deducts exchange rates when converting this into Australian currency, one is faced with the realisation that this sum represents approximately only eight years' salary for the average wage earner in that country.

There will be a verdict for the Plaintiff of $215,000.00 and costs and judgment accordingly.

JOHN E. BYRNE
J U D G E

HBC0353J.89S