George v Graudins [1969] PGSC 71 (8 September 1969)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

CORAM: FROST, A.C.J.
MONDAY, 8^TH SEPTEMBER, 1969.

BETWEEN:

P.H. GEORGE (A MALE)
Plaintiff

and

IMANTS GRAUDINS
First Defendant

and

GARRICK JOHN SEMPLE
Second Defendant.

and

AVIS RENT-A-CAR SYSTEM
PTY LTD.
Third Defendant

REASONS FOR JUDGMENT.

This is an action brought by the plaintiff for damages for personal injuries suffered by him on the 28th July, 1968, whilst a passenger on a motorcycle driven by the first-named defendant when it Frost, came into collision at the intersection of Stores Road and the Hubert Murray Highway, Port Moresby, with a motor car being driven by the defendant Semple. Each defendant has delivered a contribution notice to the other.

The collision occurred at about 12.30 a.m. in darkness, the weather being fine and clear. The intersection itself is well lit, but in the immediate vicinity away from the intersection the Highway is not well lit. Stores Road is a short road (taking its name from the installations of the Commonwealth Department of Works) which enters the Highway from the north, assuming the Highway to travel east and west. Whilst the Highway is partly level, there is an embankment on the north side on the west of the intersection, so that he vision of motorists who travel from the direction of Port Moresby towards the intersection, and of motorists travelling from Stores Road to the intersection, is obscured. Stores Road enters the Highway running slightly downhill.

The only witnesses called as to the collision were the plaintiff, Mr. Montgomery, a former police officer, and the defendant Semple, who was the only occupant of his car. The defendant Graudins was not called as a witness.

At the outset, I propose to deal with the issue of liability as between the plaintiff and each defendant.

On the night in question, the plaintiff and the defendant Graudins had been to various places in Port Moresby and each had consumed some intoxicating liquor. Late in the night, they went to the Four Mile Club, which is in Stores Road only a short distance from the intersection. At about 12.30 a.m. they left to return home to the plaintiffs flat in Boroko. The defendant Graudins was driving the motorcycle and the plaintiff was a pillion rider on the back. The plaintiff said that their intention was to travel down Stores Road to the Highway and then turn right to make the short journey back to the flat in Boroko. As they went down the road, Graudins was driving at about twenty miles an hour; as he came to the Highway, he slowed down, but not to any great extent, and still going fast and without stopping proceeded on to the Highway and commenced a righthand turn. The plaintiff was aware of headlights approaching on the right and then the collision occurred. In cross-examination, the plaintiff said that he thought the motorcycle was travelling at about twenty miles per hour in Stores Road and proceeding to turn right, and he was unaware if Graudins applied his brakes or not.

The plaintiff did not observe a car travelling on the right as they were completing the turn and they were in the process of turning right when the collision occurred. He said that they were almost on the southern side of the Highway when he saw the headlights coming up fast. In fact, the collision occurred with the motor car being driven by the defendant Semple proceeding from the direction of Port Moresby east along the Highway. Mr. Montgomery, who was then a sub-inspector of police, arrived at the scene shortly after 1 a.m. He saw a white Holden car stopped in the middle of the intersection of the carriageway for traffic outward bound from Port Moresby. He also saw a Honda motorcycle on its side some distance east of the Holden. From a plan which was tendered by the plaintiff, it appears that Hubert Murray Highway is twentyeight feet wide at the intersection and has a double line in the middle on both sides of the intersection. Stores Road is a wide road, the western half being twentyeight feet wide. Both drivers were at the scene, but the defendant Graudins was in a concussed condition and in no condition to speak. Montgomery had a conversation with the defendant Semple, asking him the nature of the collision. Semple said: "I was driving along here" - indicating in an easterly direction in Hubert Murray Highway - "and I reached about here" - indicating a position twenty yards west of the western kerb alignment in Stores Road - "I saw a motorcycle shoot out on my left. I applied the brakes, the car skidded a bit, but we collided right in the front." Semple said he was travelling at about thirty miles an hour and he agreed that some skid marks to the rear of the Holden had been made by his vehicle. Mr. Montgomery examined two short skid marks on the road some thirtysix feet west of the position of the cycle. On these marks, there were several pieces of glass and other debris. Semple agreed that this was the point of impact. Mr. Montgomery paced out the distance and found that from the skid marks which he had fixed as the point of impact, it was five feet north of the separation line in the Highway and approximately twelve feet east of the western kerb alignment of Stores Road. The point of impact was thus on Semple's correct side of the road on the intersection and on the continuation of the western portion of Stores Road, and on the incorrect side for the motorcycle proceeding from Stores Road into the Highway. There were two skid marks about fifteen feet long behind the vehicle, with an eighteen inch gap between the rear wheels of the Holden. The skid marks were quite straight. The two short skid marks at which Mr. Montgomery fixed the point of impact were approximately six feet to the rear of the vehicle, so that they were approximately 4½ feet from the end of the skid marks nearest the Holden, and slightly to the side. The damage to the Holden was squarely to the front on the radiator. The Honda motorcycle was damaged only in the front section, the front wheel fork, steering head and handlebars, and the damage was such that it appeared as if it had been caused from one side. Mr. Montgomery gave in cross-examination opinion evidence upon various matters including the speed of the Holden motor car from the length of the skid marks and the distance over which the Honda was propelled forward. The motorcycle was on the roadway approximately fifteen to the east of the Holden. The defendant Graudins called no evidence.

The only other witness to the collision was the defendant Semple. His evidence was that he was travelling towards the Gateway Hotel in an easterly direction at about thirty miles an hour. There was virtually no traffic on the road at all and no other traffic in the vicinity, apart from the motorcycle. The first thing that he knew that something was amiss was when he saw a light approaching him on his side of the road. It appeared to be two or three feet from the kerbway, in other words, cutting the corner, and as he saw it he noticed that the motorbike was leaning over coming straight for the car. He could see the two people on the motorcycle. He immediately jammed his foot on the brake. The motorcycle appeared to be travelling pretty quickly. He thought about trying to swerve, but realised that he might roll the car, so kept it in a straight line and hit the cycle which ricocheted from the front of the car. The thought that the car might roll was just a flash through his mind. Asked about the positions of the vehicles after the collision, he considered that the point of impact was about fifty feet further west than Mr. Montgomery indicated. The motorcycle finished up on the incorrect side of the road. He agreed with Mr. Montgomery's estimate of the length and position of the skid marks. He further stated that just before the moment of impact, Graudins seemed to try to escape to his correct side of the road and that is when the car hit the cycle. The time between Semple first seeing the light and cycle approaching and the impact itself was only a matter of seconds. Cross-examined as to speed, he said that he did not think he was going over thirty miles per hour.

Both Mr. Reitano for the plaintiff and Mr. Wood for the first defendant submitted that there was negligence on the part of the defendant Graudins and also the defendant Semple. The plaintiff relied on certain breaches of the regulations as evidence of negligence as against each defendant. As against the defendant Graudins he relied upon Regulation 78(4) of the Motor Traffic Regulations 1967, which provides that when two motor vehicles are approaching an intersection or junction, the driver of the vehicle having the other on its right shall give way to the other vehicle. As against the defendant Semple, both the plaintiff and the defendant Graudins relied on Regulation 57, which provides that a person who drives a motor vehicle at the approaches to or on an intersection of two public streets at a speed greater than fifteen miles per hour is guilty of an offence.

The law is well settled that a breach of road traffic regulations such as those applicable in the Territory does not give rise in itself to a cause of action. ',here negligence is alleged as in the present case breach of the regulations is one circumstance or piece of evidence to be considered along with all the other evidence in order to determine whether or not there has been an absence of reasonable care. Tucker v. McCann ^[1], Sibley v. Kais ^[2]. Such a breach "is thus no more than a piece of evidence of want of reasonable care on the part of the person guilty of such breach. This piece of evidence a jury or other fact-finding tribunal should weigh as they would any other piece of evidence and give to it such weight as they think proper in all the circumstances of the case," per Herring, C.J. Tucker v. McCann, supra, page 22. Mr. Reitano relied strongly on a passage from the judgment of the High Court in Sibley v. Kais, supra, which he submitted was particularly relevant because the High Court was there considering the breach of the statutory duty to give way to the vehicle on the right, so I shall set out the passage in full:-

"These regulations in nominating the vehicle which has another vehicle on its right as the give way vehicle are undoubtedly salutary and their breach is deservedly marked with criminal penalties. But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves: nor is the breach of such regulations conclusive as to the performance of the duty owned to one another or in respect of themselves. The common law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case.

Therefore, it is, in our opinion, rightly said that the "'right hand rule' is not the be all and end all in relation to questions of civil responsibility." The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to 'reasonable care' is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected." Ibid at pp. 220-221.

Thus the evidence is to be approached, so far as the plaintiff's case against the defendant Graudins is concerned, upon the basis that the latter's failure to give way to the vehicle on the right is not conclusive of negligence on his part. In the plaintiff's case as against the defendant Semple, the fact that Semple's was the vehicle on the right does not conclusively absolve him from liability in negligence. Further, the fact that Semple was travelling in excess of the speed limit of fifteen miles an hour as he approached the inter-section is to be taken into account in deciding whether there was negligence on his part in travelling too fast, but again it does not conclude the matter.

In my judgment, the plaintiff must succeed against the defendant Graudins and indeed Mr. Wood did not argue at the trial to the contrary. The evidence is all one way, that he travelled on to the Highway at an excessive speed, failed to keep a proper lookout for vehicles on the right and the presence of the embankment which obscured his vision to the right was a circumstance which, in my opinion, made it also a breach of his common law duty to take reasonable care to slow down and give way to traffic approaching from that direction. In cutting the corner and thereby travelling on the incorrect side approaching Semple, there was a further breach of his duty to take reasonable care.

Turning now to the plaintiff's case against the defendant Semple, it is convenient to deal first with the allegation that Semple was travelling at an excessive speed. Mr. Wood submitted that I should not accept the evidence of Semple that hew as travelling at about thirty miles per hour. He relied on the length of the skid marks, the fact that the Holden had the added efficiency of disc brakes, the evidence of severe damage to the cycle and particularly on the fact that the cycle was propelled thirtysix feet from the point of impact as indicating a much greater speed. These submissions were not supported by the opinion evidence of Montgomery, which was to the effect that the length of the skid marks and the distance the cycle was propelled forward were consistent with the speed of thirty miles per hour. However, in my opinion estimates of speed based on such evidence would be mere conjecture. Mr. Wood also relied on the evidence of the plaintiff, who said he saw headlights coming up very fast on the right hand side as the motorcycle was in the process of turning right, and then the smash occurred, all within a very short space of time. However, the momentary glimpse by the plaintiff was the headlights, upon which he based in impression of speed, taken with the other evidence, is not, in my opinion, sufficient for the plaintiff to sustain the onus of satisfying me on the balance of probabilities that the defendant Semple was travelling at an excessive speed. I observed Semple in the witness box and I regard him as a witness of truth, and I accept Montgomery's evidence that the length of the skid marks and the position of the vehicles was consistent with his speed of thirty miles an hour. I also draw the inference from Montgomery's evidence that the collision occurred on the extension of the western portion of Stores Road, so that at the time the defendant Graudins was cutting the corner. It also follows that Semple stopped his motor car before reaching the centre of the intersection, that is, even allowing for the force of the impact, he was approaching at such a speed that he had his vehicle in hand and was able to bring it to a halt before reaching the centre of the intersection and thus avoiding any vehicle making a proper turn from Stores Road into the Highway. The circumstance that Semple was exceeding fifteen miles an hour in breach of the regulations has to be considered, having regard to the fact that there was little traffic on the road and indeed none in the vicinity at the time of the accident. I have taken into account the test laid down, subject to the circumstances of each case, by the High Court in Sibley v. Kais, supra but upon all the facts of this case in my opinion the plaintiff has failed to satisfy me that Semple was travelling at an excessive speed as he approached to cross the intersection. Mr. Reitano and Mr. Wood also contended that Semple's failure to swerve amounted to negligence, but in my opinion, his decision to apply the brakes and not to swerve was made in the agony of the moment immediately prior to the collision and was not negligence on his part. Indeed, even if he had swerved, I am not satisfied that a collision would have been avoided. I am also not satisfied that there was any failure of Semple to keep a proper lookout or to apply the brakes promptly. Accordingly, in my judgment, the plaintiffs claim against the defendant Semple fails.

I now turn to the question of damages. The plaintiff had arrived from flew Zealand only a few weeks prior to the accident, pursuant to a contract made by correspondence between himself and Messrs. Laurie & Montgomerie, which is a firm of consulting engineers in Port Moresby. He had accepted the position of a civil engineer, his duties being to undertake field investigations, road location and supervision of surveying, construction and design of civil engineering works. It was anticipated that a large proportion of the plaintiff's time was to be spent on field work associated with the Territory's road programme, but otherwise he was to be employed on design works in the Port Moresby office. The plaintiff's basic salary was, for a 48-hour working week, $5300 per annum and in addition a cost of living allowance of $1200 per annum. Whilst engaged on field work, the plaintiff was to be paid an additional allowance of $4 per day to cover food and other personal items of expenditure. The period of his employment was two years. Upon completion of the two years appointment, it was provided that the plaintiff would qualify for a gratuity to be determined at that time. The letter of the 8th February, 1968, which set out the terms of the employment offered to him upon this matter stated as follow: "It is anticipated that this gratuity will be 10% of your basic salary, plus overtime, but it will depend upon the profitability, of our operations in general and the efficiency of your own work." The appointment was to be terminated by either party on three months' notice.

It will be necessary for me to return to the terms of the contract in considering special damages, but I proceed now to state the effect of the evidence concerning the plaintiff's injuries. When he was seen after the collision by Mr. Montgomery, he was in agony on the road-way. He was taken to hospital and it was found that he had suffered serious injuries to his right leg. He suffered a fracture of the mid shaft of the femur and a comminuted fracture of the right tibia and fibula. These fractures were reduced under anaesthetic and a pin was inserted through the right tibia and heel bone, the leg encased in plaster and placed in traction. The plaintiff was in this condition when, on the 28th July, 1968, he was first seen by the specialist surgeon, Mr. Reid. Upon examination, Mr. Reid considered the position of the fracture of the tibia unsatisfactory, and on the 2nd August, 1968, in the first of three operations he was to perform upon the plaintiff's leg, he manipulated it under anaesthetic. However, the condition of this fracture further deteriorated and on the 2nd September, 1968, Mr. Reid performed an open reduction, making an incision, exposing the fracture and at the same time, placing a metal rod up the fibula in an attempt to stabilise the fracture. This operation, he considered, placed the fracture in a satisfactory position. After the fractured femur was reduced by manipulation in the first operation, no further operation was performed upon it. Mr. Reid performed a third surgical procedure, when, under local anaesthetic, he performed a skin graft to the injured leg. Further treatment was carried out by another surgeon after three or four months, he was removed from traction, a caliper was fitted and the patient was mobilised. He was taught to walk and on 1st February, 1969 he was discharged from hospital. During his stay in hospital, he had suffered extensive infection of the skin which caused both pain and discomfort and required prolonged treatment. He suffered much pain. He had also suffered a worrying condition which made the plaintiff very sick in that, after the initial operations under anaesthetic, there was a greatly quickened pulse rate, caused apparently by the general anaesthetic, and it led Mr. Reid to administer merely a local anaesthetic when he performed the skin graft. Mr. Reid saw the plaintiff on the 27th February, 1969 and at this time the skin graft and the wound in the leg had healed satisfactorily. X-rays showed that the fractures were uniting satisfactorily. The plaintiff had approximately one inch of shortening on the right lower limb which was caused by the position in which the fracture of the femur had been set, and his flexion of the knee was limited to about 80° instead of the normal 110° - 120°. The pin which had been inserted in the fibula had become so well incorporated into the bone that it was not necessary to remove it. Mr. Reid last saw the plaintiff in April and was able to assess his degree of recovery and the future disabilities as a result of the examination he then made. Union of the fractures was almost complete and Mr. Reid is satisfied that full bony union has since been achieved. Mr. Reid's opinion was that the right limb will never be able to function as a normal limb. There had been a considerable amount of muscle damage, so that the power of the limb would not be as great as of a normal limb. There was also the inch of shortening and the limitation of flexion of the knee. Another serious disability is the risk of osteo-arthritis in the knee. Whilst the fracture of the femur did not involve the knee joint and the tibia and fibula fractures are in good alignment, unfortunately the femur is not in perfect alignment, due to the fracture being a comminuted fracture, so that it was impossible to line up all the pieces. This led to the shortening of the whole lower limb. Thus the architectural structure of the knee joint has been altered and Mr. Reid considered the risk of the plaintiff getting osteo-arthritis in the knee joint was about 50% in ten or twenty years time. At the moment, there are no clinical signs of such condition. However, if the condition does eventuate, the plaintiff will suffer pain in the knee upon prolonged movement, which it should be sufficient to treat by common drugs such as aspirin. The loss of muscle power to some extent will be permanent and this will affect the length of time that he can stay on his legs and the distance he can walk. There would be a tendency to tire. The shortening of the leg will be relived by the plaintiff wearing a built-up shoe, but his main difficulty will be in moving up and down stairs, which will be affected by the limitation of the function of the knee joint. These disabilities will affect him walking not only up and down hill, and in rough country, but also over long distances. The more active sports, such as squash, tennis and football, will be debarred him. However, the mere strenuous indulgence in these sports would, apart from the accident, be unwise for the plaintiff, due to the abnormality of his pulse rate. There was some limitation of function of the ankle joint also, with the possibility of osteo-arthritis, but Mr. Reid did not think it a very great disability because the weight bearing line of the ankle was normal. There was some loss of ability to move the ankle in down flexion, but this was really no disability to the plaintiff, because it compensated for the shortening of the leg.

The effect of this disability in his future life can now be summarised. The active sports he indulged in before the accident were social squash and swimming. He had also started to play tennis. He finds now that he cannot run. Eh cannot play even a social game of squash, nor can he play tennis. He finds that in doing breaststrokes in swimming, which he was taught in England, the loss of flexion of the knee is a disability. He will been to learn another swimming stroke. Mr. Reid considered that the plaintiff could take up golf and dancing, other than the more active modern types, but he will be unable to walk long distances or over rough country. There is the fifty-fifty chance of osteo-arthritis in the knee joint. I should add that he walks with a very slight limp, with slight bowing of the lower leg.

It will be seen that this will affect him in his recreations and will effectively prevent him from spending any long periods in the field as an engineer. Certainly the plaintiff has been prevented from taking up his field investigation duties in his present employment and will be effectively prevented from doing so during the remainder of his two year contract of employment. He had expected to leave the Territory at the end of his contract. No claim was put forward by the plaintiff for loss of income in his profession as an engineer arising from the leg injury, apparently because Mr. Reitano considered that there was no reason why the plaintiff could not secure, on leaving the Territory, equally remunerative employment as an engineer which did not involve field duties. The rigours of field work especially in the Territory are probably such that the plaintiff was envisaging a two year contract only.

Turning to special damages, I must say I have not been assisted as much as I would have hoped by the calculations put forward on behalf of the plaintiff. Thus the total of the annual salary and field allowance is $6500, so that the loss over the six months' period whilst the plaintiff was in hospital is $3250, but $3601 is claimed. The law is plain so far as loss of salary is concerned. The plaintiff can recover the net loss only, that is, loss of earnings less income tax. (British Transport Commission v. Gourley) ^[3]. But the plaintiff's counsel did not set out the appropriate deductions and so I am left, unaided, to make an estimate, which must not be unfair to the defendant. It was conceded by Mr. Wood that the plaintiff was entitled to $1295.20 for hospital and medical expenses. I consider that on the evidence the plaintiff is entitled to the loss of the field allowance of $4.00 per day, such loss to be assessed over a period of 300 days per annum, but allowing for some deductions for income tax, and contingencies such as sickness, I propose to allow for the period to the date of the trial $1,000. For the loss of salary to the date of the trial and deducting the pay received and allowing for income tax, I allow the sum of $2500.

After the plaintiff resumed work, his salary was proportionately reduced, having regard to the fact that the hours worked were 40 hours instead of 48 hours which he would have worked in the field. Also he has lost $13.40 per week of the Territory allowance of $1200. Income tax has to be deducted. I allow the sum claimed, $507.20, for this item.

So far as the bonus is concerned, Mr. Moir, of the plaintiff's employer firm, stated that the plaintiff being now in the office in Port Moresby could not expect to receive a bonus of 10% his basic salary. This evidence is equivocal that he may still qualify for a smaller bonus. It is possible that the plaintiff would not have qualified for a bonus even if he had fulfilled his contract as a field engineer. If the plaintiff did qualify for it, he would have received $530. I propose to allow $300.00 for the loss of the ch21ce he has sustained of earning this bonus. The total special damages is thus $5902.40.

The plaintiff has lost the entire salary for the remaining twelve months of his contract, and taking into account income tax deductions, contingencies and the loss of part of his Territory allowance at the rate of $13.40 per week, and also the loss of the Field Allowance, I propose to allow $2,000 for this item, which is, of course, an item of general damages.

Turning now to general damages, the plaintiff is entitled to reasonable compensation for the injuries received and the disabilities caused and it is to be proportionate to his situation (Planet Fisheries Pty. Ltd. v. La Rosa) ^[4]. The plaintiff is to be compensated for the pain and suffering he has undergone, the loss of the amenities of life and any economic loss he has sustained. He has suffered severe pain immediately after the accident and much pain and discomfort over a period of about six months when he was in hospital, half of the time with his leg in plaster and raised in traction. There was the discomfort also of the skin infection and the illness he suffered. He is a man now of twentysix years of age. The physical disabilities he has been left with will affect his future enjoyment of life. He will need to wear a built-up shoe. If osteo-arthritis does occur in later life, he will suffer pain which will require alleviation by taking common drugs. For the reasons I have mentioned, I do not take into account any economic loss as a civil engineer, other than the sum which I have allowed as a loss from the remaining period of his contract. Taking into account all these matters and the fact that the compensating award should not only be fair and reasonable, but also moderate, I have decided to allow the sum of $8,000 as general damages, making a total award of damages of $15,902.40.

There will be judgment for the plaintiff against the first-named defendant for this sum, together with the plaintiff's costs to be taxed and in view of the issue between the two defendants for contribution, I also order that the defendant Graudins pay the defendant Semple's taxed costs.

_________________

Solicitors for the plaintiff: Norman White & Reitano.
Solicitors for the first defendant: Cyril P. McCubbery & Co.
Solicitor; for the second and third defendants: Craig-Kirke & Pratt.

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^[1] (1948) VLR 222.
^[2] 41 ALJR 220.
^[3] (1956) AC 185.
^[4] [1968] HCA 62; 42 ALJR 237 at p. 239.