Hendron v Cockburn [1964] PNGLR 144 (18 December 1964)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 144 - Hendron v Cockburn

[1964] PNGLR 144

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

HENDRON

V

COCKBURN

Rabaul & Port Moresby

Ollerenshaw J

23 October 1964

26-27 October 1964

5 November 1964

18 December 1964

ROAD ACCIDENT - Negligence - Judgment in Emergency - Skid - Damages for personal injuries - Loss of earning capacity - Comparative awards in England for similar injuries.

The plaintiff sued to recover damages for personal injuries received by him in a road accident.

As a result of the accident the plaintiff lost a patella and was left with a permanent limitation of the flexion of his right knee, some wasting of the thigh muscles, a thickening of the right forefoot, and the loss of sensation in part of his right leg. There was a possibility of osteoarthritis in later life.

Held:

The plaintiff was entitled to recover without apportionment and damages should be assessed at £4,250.

Discussion of the facts considered in arriving at an award of damages. Reports of the amount of awards made in England are of no great assistance to this court when assessing damages.

The facts appear in the judgment.

Counsel:

Smith, for the plaintiff.

Cruickshank, for the defendant.

OLLERENSHAW J:  The plaintiff sued to recover damages for personal injuries received by him in a road accident.

On the 20th May, 1963, he was driving a motor scooter travelling at a speed of between twenty and twenty-five miles per hour, outward bound along 2/22nd Street, Rabaul, which he had entered by a left hand turn from Wisdom Street. Just after making the turn he waved to some children, who were playing on the lawn in front of a house near the corner, and this helped to attract to him the attention of one of the witnesses who confirmed his evidence of speed and some other respects.

After this greeting to the children he travelled on for another hundred and twenty yards before he was hit by the defendant’s motor car - a Singer Tourer - coming on his left from the defendant’s driveway or rather the common double driveway used by the defendant and his neighbour, across the wide grassy footpath into 2/22nd Street.

Prior to seeing the defendant’s vehicle just before the collision he was travelling close to the kerb on his side of the road and about, as I find, three feet from it.

Most probably he would have seen the car a little earlier had he not been obliged to ensure that there was no traffic approaching from Wanliss Street, which comes into 2/22nd Street on the right, facing as he was, and makes a “T” intersection about twenty or so yards short of the course that the car was travelling across the footpath to the street.

I think that it is probable that when the plaintiff did see the defendant’s car, just before the impact, in fright he lost control of the scooter, else he may have been able to swerve to his right and possibly to accelerate and so have avoided the accident.

The defendant’s wife was the driver of his motor car and it is admitted that she was driving as his agent. She drove from his car port, about ten yards in from his front boundary, and would have had no vision to her right along 2/22nd Street until she cleared the hedge that marks the frontages of the defendant’s and his neighbours’ properties. More immediately, her vision was obscured by the hedge that separates her husband’s allotment from their neighbours on their right as they face the road. However, the footpath she had to cross is twelve feet wide and from it her vision of traffic coming on her right was uninterrupted. She travelled most of the way across this footpath when, having seen the defendant coming close on her right on a course that must inevitably bring him into collision with the car unless she or he did something about it, and realising that he had not seen her, she braked hard and skidded on some tufts of grass that in the pumice dust had survived the passage of cars travelling from and into the defendant’s home. The skid took the car, which was approaching the roadway at an angle of about 45 degrees to its right, about three feet or more on its near side and about five feet or a little less on its far side, in accord with its oblique approach, on to the roadway where it collided with the scooter. It seems that the scooter hit the car about its front offside mudguard where the bumper bar comes around the mudguard as it does on the model of Singer Tourer the defendant’s wife was driving. It is probable that the impact occurred at or immediately after the moment the car stopped.

The plaintiff’s left knee was hit by the car and gashed so that the kneecap was exposed and fractured parts of it displaced. He was thrown on to the bonnet of the car and sustained some other injuries. This experience, however, did not prevent him at the moment from getting up off the road and hopping to the grass on the far footpath. The defendant’s wife, who in the agony of the moment had tried to call out to warn the plaintiff when she saw that his attention was still directed to Wanliss Street and he had not seen her as she expected him to, left her car in haste without waiting to switch off the engine and reached the plaintiff before he had gained the kerb. She assisted him to the footpath, got him to lie down and then rang the police to bring an ambulance and a doctor and, at his request, his father. She looked unavailingly for someone to shield him from the sun but was able to instruct her eldest son to switch off the engine of the car.

The plaintiff alleges that the collision was caused solely by the negligence of the defendant’s wife and particularizes thus:

(a)      that she failed to keep a proper or any lookout;

(b)      that she failed to exercise reasonable care and skill in driving the vehicle; and

(c)      that she drove it on to the roadway at a time and in a manner no reasonably prudent person would have done.

The defendant replies that the accident was caused or contributed to by the negligence of the plaintiff and gave these particulars:

(a)      that the plaintiff drove at a speed which was too fast in the circumstances;

(b)      that the plaintiff failed to keep any or any proper lookout and failed to see the defendant’s vehicle in sufficient time to avoid colliding with his vehicle or at all; and

(c)      that he failed to stop, to slow down, to swerve or in any other way so to manage or control his scooter as to avoid colliding with the defendant’s vehicle.

On the 5th November, 1964, I delivered judgment for the plaintiff for the sum of £4,250 and I then said:

“I arrive at this figure without apportionment because I think that, in a legal sense, the collision between the plaintiff’s motor scooter and the defendant’s car was due solely to the negligence of the driver of the car.

“I say ‘in a legal sense’ because in other than legal parlance the collision was an accident.

“I would add that from the moment the driver of the defendant’s vehicle realised the danger of a collision with the plaintiff on his motor scooter, her behaviour, both in the management of the car and in her consideration for the welfare of the plaintiff, was in an ordinary human way, exemplary.

“Anyone associated with the case would have, I feel sure, almost as much sympathy with the defendant’s wife as with the plaintiff. I hope that the verdict which I have found will be some consolation for both of them.

“I will publish my reasons for my decision in due course.”

I am familiar with the junction of Wanliss Street and 2/22nd Street, it being in the course of all my journeys from the quarters or rather quarter of a “building” that is provided for the residence of Judges of the Supreme Court on circuit at Rabaul, and although I did not know the location of the defendant’s home my knowledge of the area and points involved in this action was improved by the view which I had with counsel.

I approach the questions of negligence realising that 2/22nd Street, with a width of twenty feet, is little more than a lane and quite inadequate for the traffic that it carries. I regard its junction with Wanliss Street as a place of jeopardy for the incautious. Wanliss Street is about as narrow as 2/22nd Street and the not inconsiderable traffic that it carries at times and the odd vehicle that may come from it at any time must be a source of danger to persons travelling along 2/22nd Street either inward or outward bound. In my view it was the plaintiff’s duty to take care of himself as well as to have regard for other users of these streets by approaching and passing Wanliss Street with caution. Even at the speed he was travelling he would be at least half-way across Wanliss Street before he could give full attention to any vehicle coming out of a private home on his left.

The defendant’s wife should and would undoubtedly have been aware of the situation of, and duty of a driver on her right in 2/22nd Street to give his attention to Wanliss Street and she was coming not on a road but across a footpath from a private residence into 2/22nd Street and into the line of its traffic. It may be true that had he seen the car when his attention was no longer required by Wanliss Street he may have been able to evade the hazard created by the driver of the car, but in the danger and difficulty forced upon him by the not reasonably to be expected progress of the car towards and on to the roadway the law of negligence, in my view of its application to the facts, relieved him from the exercise of a judgment that in the emergency may have directed his scooter from the path of the car and its final position and so have avoided the collision: vide, e.g., Clerk & Lindsell on Torts, Twelfth edition at page 819 and Halsbury’s Laws of England, Third edition, Vol. 28 at pages 28 & 91.

I have said that having realised the peril of the plaintiff the driver of the car behaved exemplarily in a human way - it was a womanly way. However, even at the last moment a less hard braking, which I would expect from a reasonably careful driver, might have avoided the skid and the collision. In my view the negligence that really caused the collision was what must have been her incautious approach to the road as she drove out of her own driveway and over the footpath, probably at a speed that was excessive in the circumstances; and so the skid ceases to be neutral: Vide Charlesworth on Negligence, Fourth edition at page 243 and the cases there collected, particularly Laurie v. Raglan Budding Co.[cii]¹ and Hunter v. Wright[ciii]² also Mazengarb’s Negligence On The Highway, Fourth edition, at pages 121 and 122.

The plaintiff sustained these injuries:

(a)      A complicated fracture of the right patella with considerable dislocation. The gash to which I have referred as exposing the bone was nearly two inches long.

(b)      A fracture of the first metatarsus in the right foot near the proximal joint;

(c)      Multiple abrasions and bruises; and

(d)      Shock.

He was taken in considerable pain, mostly in the knee, to Nonga Base hospital, where he remained for two weeks while his patella was repaired. Analgesics were administered by needle on a four-hourly basis during this period. His leg was painful when the effect of the drug wore off and then relief came from the next administration and so on. In the second week his foot was put in plaster extending to the middle of the thigh. He returned home to bed and first stood up for about a minute on the 12th June, 1963. Later he was able to get up and sit in a chair and moved about a little on crutches. Sleeping pills and pain-killing tablets had been substituted for the drug he received in hospital. On or about the 8th July his doctor was of the opinion that he was not progressing as well as had been hoped, “that he was suffering a lot of pain and was very depressed as the enforced inactivity was affecting his nervous system adversely as he had been a very active man.”

On the 26th July he returned to hospital for his second operation: this time his patella was removed in accordance with accepted surgical treatment. He was discharged after a week and received treatment from a physiotherapist on four days a week for two weeks and then three days a week until the end of September. At first he got about on crutches and later a walking stick, which he was able to discard by the end of September.

The plaintiff is a young man - he was twenty-four at the time of the accident - whose custom it was to live a vigorous life both at work and at play. After various types of employment in Queensland and the Territory of New Guinea, mostly of a heavy nature and some with his father, he had become the working and equal partner of his father, who was and for some years had been carrying on from Rabaul a successful and highly remunerative contracting business. The father said in evidence: “Any big buildings of structural steel I do otherwise it’s all piles, bridges and wharves.” I do not propose to go into detail but it is clear from the evidence that, barring accidents, the plaintiff was in the position of a son to whom his father could entrust the leading work of, for instance, a rigger if it were a bridge they were building, and the immediate supervision of the native labour on the “job” while he, himself, attended to the contract getting, the ordering and so on and the general supervision of the business. The son’s work, described by his father, also included the “top-man’s work on the pile frame and all welding, electrical or oxy,”, a topman’s work involving continuous climbing up and down on the pile frame to the pile head, stabilising piles and putting the monkey and I, think, the helmet in position on the frame.

In sport the main outlet for the plaintiff’s energy was in football. It appears that he was a first-class player in Queensland. After some successful working seasons in the Territory he returned for the football season to Toowoomba to play with its Reserve Grade and sometimes “A” Grade teams. He also played football for a season in “A” Grade in New Zealand. Apparently, in the year 1960, he “went out West in Queensland and obtained work slaughtering and butchering” while he continued his football as the paid coach of and a player with the local “A” Grade Team. He also played baseball, basketball, tennis and squash.

During the period of his complete incapacity for work the plaintiff lost the full pecuniary benefit of the “Queen Carola Harbour, Buka Island”, contract for the supply, fabrication and erection of four Marker Beacons but on the 1st October he commenced to fulfil, with the assistance of native labour, a small contract for the erection of a cyclone fence, a contract which his father passed over to him, financing him to assist him to get started again. All the manual work for this contract was performed by native labour because his “leg was not strong enough to bend or at that stage even to stand on it for any length of time.” He then rejoined his father as an equal partner and the “Yule Island” or “Hall Sounds” contract to erect five Reef Markers for a total profit of £3,600 was completed, apparently without financial loss as no other European was employed in the plaintiff’s place although he could no longer take the active part he had been accustomed to. The evidence of the father was to the effect that he had to keep the plaintiff off the pile frame as much as possible, that he could not and cannot allow him to climb much at all with his leg the way it is, that he climbed poorly, that he welded perfectly alright standing or sitting but that for a crouch weld he cannot stay down or get down far enough and generally that his son now fulfils the role of a supervisor. More recently the partnership commenced to construct a workshop, the father spends a full working day supervising on the “job” while the son does the buying, collecting of tools, ordering and attends to all other such matters.

The father is 60 years of age and so more suited, himself, to fill the role the son has taken over. He said in cross-examination: “I’m supervising actually - I do very little manual work myself” and when asked if that were because of age he replied: “And everything else”.

He said in chief that if the plaintiff were not his son he would not employ him in the position he now fills and perhaps it appears from so much of the evidence as I have set out above why this was not really challenged in cross-examination. While at present there does not appear to be any direct pecuniary loss to the plaintiff from his reduced working capacity I am satisfied that that is due mainly to the natural benevolence of his father.

Coming to the effect of his injury upon his games, the plaintiff has, of course, not played football since the accident and has had about three games of golf and also about half a dozen games of squash with a friend who usually hits the ball back to him so that he can return it and he says that it is physically impossible to play other sports at all because of his leg. Perhaps he will find that he can play more golf and that “social” tennis may not be beyond his capacity for some years.

The evidence of an orthopaedic specialist who examined the plaintiff on the 25th March, 1st April and 21st October, 1964, is to the effect that his complaints of aching in his right knee and pain in his right foot continuing “at different times even now” were genuine. This medical witness also said, as to his knee, that he had some limitation of flexion of his right knee, such wasting of the thigh muscles as persists because of lack of full movement of the knee joint and crepitation on movement due to the fracture of his knee-cap and, as to his foot, that there was some thickening of the forefoot, a clicking on certain movements and that on the front of his leg there was an area where sensation was almost lost.

As to his disabilities there is the evidence of this witness to the effect that no improvement is to be expected in the condition of his leg and that: “He could not bend the knee sufficiently to do work in a crouched position and the condition of his knee made it dangerous for him to work at a height. His foot became more painful at the end of a day when he had been standing a good deal, his leg had a loss of stability due to the muscle weakness.” Under cross-examination it was explained that the plaintiff, having lost the protection afforded to his knee by a patella, was more liable to injury when he kneels or hits something at a height and that his muscles being weaker, his leg was less stable.

Finally this witness said that an injury, causing such a fracture of the patella as the plaintiff sustained, usually produced osteo-arthritis in later life and that on account of his injury in his foot involving his joint he could finally end up with an osteo-arthritis there.

Coming to his sporting capacity, this specialist said that it would be unwise for him to play football on account of his knee and that as to other sports, if he wants to play he could “give it a try”.

I do not think that much, if anything, is to be gained by setting out in this judgment all the details of the well-known considerations that must pass through one’s mind as a jury converting to a monetary compensation the effect upon the plaintiff, in all his circumstances and subject to all the contingencies, of the physical injuries and disabilities he has sustained, in this case involving the foot as well as the knee of his right leg.

I should mention Mr Smith’s reliance for a general award on account of “economic loss” upon the judgment of Windeyer J. in Bresatz v. Przibilla[civ]³, where His Honour compendiously referred to one of the elements in “economic loss” as the “destruction of the plaintiff’s earning capacity”. The underline is mine. I imagine that Mr Smith did not cite the judgment of Windeyer J. in Teubner v. Humble[cv]⁴, in which His Honour developed his views upon loss of earning capacity as a head of compensation and made reference to the “destruction or diminution of a faculty” or skill, because he well knew that Mr Cruickshank had relied upon it and pressed it upon me in other cases which I heard during this Circuit Sitting at Rabaul in which their roles as counsel were reversed.

Mr Smith submitted that there must be a monetary loss to the partnership and so to the plaintiff because without the active participation of the plaintiff, as before his accident, contracts would take longer to fulfil, even if another European were employed, who would not take the same keen interest as a vigorous son and partner. In any event, he submitted, that if it came about, as appeared likely, that another European had to be employed in the place formerly occupied by the son this would mean a reduction in the profits to be shared. I would think that if there had been any relevant and significant loss of profits in the case of the “Yule Island” contract, the only contract completed since the plaintiff rejoined his father, there would have been evidence of it. However, I do consider that the possibility of economic loss to the plaintiff occurring for the reasons submitted by Mr Smith cannot be entirely overlooked.

Furthermore, I do think that this is a case in which a not-insubstantial compensation should be allowed on account of the plaintiff’s reduced earning capacity notwithstanding that for the immediate future his “economic” position will be taken care of by his father. One might say “for the foreseeable future”, but, that depends upon the maintenance of the present rate of progress in the Territory undisturbed by any of the number of contingencies that may interrupt the continuity of that progress. In a depressed labour market in the Territory or in Australia he would be considerably handicapped.

Although the sum to be allowed cannot be calculated or determined with anything like precision it is clear that, having come to the conclusion which I have expressed in the preceding paragraph, an assessment must be made, notwithstanding that it will be largely arbitrary: Vide the judgments of Windeyer, J. in Bresatz v. Przibilla[cvi]⁵ and Teubner v. Humble[cvii]⁶ and cf. Chaplin v. Hicks[cviii]⁷ and Howe v. Teefy[cix]⁸.

For special damages the plaintiff was entitled to his hospital and medical expenses admitted to be £133 and the loss of his share of the profit from the “Queen Carola Harbour” contract, being the amount of £1,150; in all the sum of £1,283.

Inspired by and in reliance upon the reports of awards of damages for physical injuries to be found in The Quantum of Damages by Kemp & Kemp, Mr. Smith submitted that for pain and suffering past, present and future, damage to his body, loss of amenities, loss of skill and working capacity and possible future economic loss the award should be £2,500, making a total verdict of £3,783.

However, coming as I do from the Australian community of New South Wales to do justice to the “Europeans” as well as to the natives in this community, a community developed by and still closely associated with Australia, I do not find much assistance in the reports of the amount of awards in England and relied upon for this submission.

Upon a consideration of the evidence in this particular case and the submissions of counsel, regarded in the light of such evidence, I came to the conclusion that the appropriate award to cover the damages under the heads already mentioned was about £3,000. In this sum is the amount of £2,000 for pain and inconvenience, the physical damage to the plaintiff’s body and the loss of some of the enjoyments of his life, particularly his working life and his playing life. Mr. Cruickshank invited me to apportion the damages under the various heads that I have mentioned. However, I find in the above-mentioned judgments of Windeyer, J., to which I have been referred, encouragement for not particularizing amounts of compensation for matters which must inevitably overlap and cannot have the characteristics of items in a “balance sheet”.

The balance of £1,000 is compensation for the damage to his working capacity and the possible consequential loss of earning capacity.

I pronounced judgment for the plaintiff for the sum of £4,250.

Solicitor for the plaintiff: F. N. Warner Shand, Rabaul.

Solicitor for the defendant: W. A. Lalor, Public Solicitor.

[cii](1942) 1 K.B. 152.

[ciii](1938) 2 ALL. E.R. 621.

[civ][1962] HCA 54; (1962-1963) 108 C.L.R. 541 at p. 542.

[cv] (1962-1963) 36 A.L.J. 362 at p. 365; [1963] HCA 11; 108 C.L.R. 491 at pp. 505 and 506.

[cvi][1962] HCA 54; (1962-1963) 108 C.L.R. 541 at p. 542.

[cvii] (1962-1963) 36 A.L.J. 362 at p. 365; 108 C.L.R. 491.

[cviii](1911) 2 K.B. 786.

[cix][1927] NSWStRp 41; (1927) 27 S.R. (N.S.W.) 301; 44 W.N. 102.