Drzyzaga v Nominal Defendant [2012] QDC 323

DISTRICT COURT OF QUEENSLAND CITATION: Drzyzaga v Nominal Defendant [2012] QDC 323 PARTIES: STEPHAN CONSTANTY DRZYZAGA (plaintiff) v NOMINAL DEFENDANT (defendant) FILE NO: D3850/2011 DIVISION: PROCEEDING: Trial ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 31 August 2012 DELIVERED AT: Brisbane HEARING DATE: 29 February, 1, 2 March 2012 JUDGE: McGill SC, DCJ ORDER: Judgment that the defendant pay the plaintiff $111,663.24 including $433.60 by way of interest. CATCHWORDS: NEGLIGENCE – Motor Vehicle – single vehicle accident – whether accident occurred as alleged – whether negligence of unidentified vehicle – whether contributory negligence. Motor Accident Insurance Act 1994 s 31(2). Ballesteros v Chidlow [2006] QCA 323 – dcited. Harrison v Nominal Defendant (1976) 50 ALJR 330 – applied. Van Muyen v Nominal Defendant [2002] QSC 344 – cited. COUNSEL: J P Kimmins for the plaintiff R Dickson for the defendant SOLICITORS: Shine Lawyers for the plaintiff Broadley Rees Hogan lawyers for the defendant [1] On 24 February 2009 the plaintiff was driving a semi-trailer south along the Pacific Highway to the exit for the Nerang-Broadbeach Road. He was delivering a load of merchandise to Woolworths at Broadbeach, and accordingly took the exit ramp which climbs out of a long cutting through which the highway runs; the Nerang- Broadbeach Road itself passes over the highway on a bridge at more or less the -- 1 of 17 -- 2 former ground level. As the exit ramp approaches that road it divides into two lanes for traffic turning right at the overbridge, a turn controlled by traffic signals, and a slip lane for traffic turning left onto that road, a turn permitted at any time with care. Close to the road there is a traffic island roughly triangular in shape between the slip lane and the other lanes. [2] The plaintiff ought to have turned into the slip lane to proceed east along that road, but in fact his vehicle ran on to the traffic island and came to a stop close to a pole supporting street lights. The plaintiff claims that as a result he suffered personal injury, and that he ended up in this position because he had swerved to avoid a vehicle which had inappropriately pulled up in front of him in the left turning slip lane, causing him to swerve to the right to avoid colliding with it. The plaintiff has not been able to ascertain the identity of that vehicle. Liability and quantum are both in issue. The plaintiff’s version [3] The plaintiff said that when he came to the exit he took the cruise control off and lifted his foot from the accelerator which automatically applied the Jake brakes, slowing the vehicle down: p 22. He had been following a four wheel drive about 40 m in front of him for some time and it also went up the exit ramp. The four wheel drive proceeded into the left lane leading to the set of lights at the road: p 23. As he was going up the exit ramp and approaching the slip lane to turn left he did a mirror check on his trailer, which involved looking in the mirror on the right hand side of the cab. While he was doing this he saw a flash of red to his left, looked round and saw a white tray back ute parked on the side of the slip lane about 10 m in front of him: pp 23-4, 26.1 He swerved the truck to the right to avoid this vehicle. [4] The Jake brakes were still operating but he did not apply the foot brake because of concern that the trailer would lock up and swing to the left, which may have caused it to strike the parked truck: p 26. He said that after swerving to the right he swerved to the left to avoid vehicles stopped at the traffic lights, and then found himself facing the median strip: p 27. He estimated that he would have been doing 40 kms per hour at the time when his vehicle struck the median strip; when he saw the median strip in front of him he did apply the air brakes: p 27. After he came to a stop the white utility drove off, turning left into Nerang-Broadbeach Road: p 27. He said the collision was at about 2.24 pm, the weather was fine and the road dry. [5] The plaintiff said that after he came to a halt he contacted Mr Gillon, his supervisor, and said he had a burn on his leg; he was told that someone would be sent down to him: p 28. He got out of the truck and stood beside the barrier on the side of the slip lane and smoked until, about 20 minutes later, Mr Snell who was passing stopped and asked how he was and what had happened. At some point someone from his employer turned up, but an ambulance also attended to him2, put a dressing on his leg and a neck brace on him and took him to Robina Hospital: p 29. 1 He marked the position of the vehicle on the photograph in Exhibit 1, Tab F, p 4. He had not previously seen this vehicle: p 49. 2 It was Mr Snell who called the ambulance: p 74. -- 2 of 17 -- 3 [6] The following day he completed an incident report: Exhibit 7. The version given there was similar to the plaintiff‟s evidence, that he was checking his trailer in the right rear mirror when he had a flash of red in the corner of his left eye, turned his head and saw a ute had stopped in front of him, swerved to avoid hitting it and the truck mounted the median strip and came into contact with the road sign. He complained in the form of stiffness to his neck and a burn on the right leg. The position was similar with the version given in a notice of accident form which he signed on 10 September 2009 and provided to the defendant, except that the wording suggests that he saw this ute brake to a stop, which was not the case3: Exhibit 10. Other evidence [7] Evidence was given by Mr Snell that on the day of the accident he came upon the plaintiff‟s vehicle when it was on the median strip, and pulled over to assist: p 9. He spoke to the driver, checked that he was all right, and asked what had happened. He said that the driver said that he was distracted by something down the right hand side of his vehicle or the right hand side of the cab, when he looked back up the vehicles in front of him had stopped and he had taken evasive action to avoid hitting those vehicles, and ended up in the garden: p 9.4 He remained with the driver for about 15 to 20 minutes until the ambulance arrived: p 12. Mr Snell said that the position where the truck ended up was consistent with its having been in the left turn lane: p 22. [8] Mr Snell had also made statements, on 9 November 2009 (Exhibit 16) and 18 September 2010: Exhibit 17. There are some differences in these two versions, and both differ in detail from his oral evidence. Exhibit 16 said that the plaintiff had told him that as he was coming up the exit ramp he was distracted for some reason, Mr Snell could not recall the reason, and when he looked up the line of traffic in front of him had stopped and to avoid them he took evasive action and swung to the right and ended up running over the median strip. In Exhibit 17 he said the first thing he said to the plaintiff when he pulled up at the scene was “what happened?” He said the reply was that he was distracted by light or a reflection or something, or a vehicle beside him on the right hand side, when he looked up the traffic had stopped or words to that effect. [9] Mr Snell said he had reviewed those statements the previous night (p 12) but his recollection of what happened on the day was still very clear: p 13.5 He said that his recollection when giving evidence was that the plaintiff had used the word “vehicles” rather than “line of traffic”: p 21. He did not agree however that the plaintiff could have referred to “vehicle” in the singular. In the first statement he described the semi-trailer as red, whereas the cab was white and the trailer was essentially white, although it had the name of the supermarket chain and some lining in red painted on it: Exhibit 2. Under cross-examination Mr Snell denied that 3 Plaintiff p 56; the answer was written in by his solicitor. 4 The plaintiff denied he said anything like this: p 43. I suspect after this time he does not have any clear recollection of the conversation. 5 This was contrary to what he said to an investigator on 6 February 2011: James p 58, which I accept, Exhibits 22, 23. -- 3 of 17 -- 4 the plaintiff had told him what had distracted him, and said that the plaintiff just did not say what it was: p 18. That is not what he said in either of the statements. [10] When cross-examined about terminology in Exhibit 17, he said that his recollection was that the plaintiff had actually stated that he was distracted by something on his right hand side, and that he (Mr Snell) obviously assumed it was either a light or something that reflected down on there, because he knew from passing that particular street sign that it does reflect back into that lane: p 18. This suggests that the answer in the statement was based on reconstruction rather than recollection of the witness. This tendency to reconstruct was also shown by his answers at p 23, line 33 and line 46. It also appears that the reference to swinging to the right in Exhibit 16 was reconstruction: p 25, line 36. Overall I do not accept Mr Snell as a particularly reliable witness, and do not prefer his account to that given by the plaintiff in evidence as to the accident, which is really not much different. [11] Mr Gillon, who worked for the plaintiff‟s employer at the time, gave evidence to verify a document in which he had recorded what he said were the terms of a conversation he had with the plaintiff about what had happened when the plaintiff rang after the accident: Exhibit 19. This record was made later in the day, after Mr Gillon had driven down to the scene and returned to his office, rather than immediately after the conversation: p 31. Very little was said there about how the accident happened. He was asked how he ended up on the median strip, which he did not directly answer. The note records a question “was there anybody else involved?” which elicited the answer “there were no other cars involved or around when it happened.”6 A version of the conversation given in March 2011 was slightly different in relation to this point: Exhibit 20, and see p 37, where he moved further away from Exhibit 19. [12] It was submitted for the defendant that this was inconsistent with the plaintiff‟s evidence, but I think that, given that the plaintiff had just been asked whether he was all right, he may well have interpreted the question as an enquiry as to whether there was somebody injured at the time, or someone immediately involved who might have been injured. It also occurs to me that at the time the witness would not have been particularly focusing on how the accident occurred, but rather on the question of who was injured, and this might have influenced the preparation of this statement some hours later. [13] Mr Davidge who also worked for the plaintiff‟s employer gave evidence of an occasion when another officer of that company was having a phone conversation with the plaintiff on the telephone using a speaker phone, and said that that other officer had in the course of that conversation said to the plaintiff that he had previously admitted that he was speeding, and that in the course of that conversation the plaintiff again admitted on the phone that he was speeding; this was recorded within an hour in a diary note which became Exhibit 21.7 6 The plaintiff denied he was asked this question, rather, what had happened: p 42. If it matters, I prefer Mr Gillon‟s version of the conversation, but I do not think it is of any great significance. 7 The plaintiff denied this conversation: p 64. I prefer the evidence of Mr Davidge. -- 4 of 17 -- 5 Analysis [14] It was submitted by the defendant that the plaintiff‟s evidence of following a four- wheel drive vehicle was inconsistent with the allegation in paragraph 5 of the original statement of claim: Exhibit 9; but that paragraph is speaking about the behaviour of the unidentified vehicle which the plaintiff swerved to avoid, and on the plaintiff‟s evidence that was definitely not the vehicle that the plaintiff had been following at the distance for about 40 metres for some time. The four-wheel drive that the plaintiff was following was really irrelevant to the circumstances of the accident. The plaintiff said that he did not see the unidentified vehicle before he saw it stationary at the side of the slip lane. There is no evidence that it had previously been heading in a southerly direction along the highway, but it must have done so in order to get to that position. Whether it was at one point travelling south immediately in front of the four-wheel drive does not really matter, though I suspect it is unlikely that that was the situation; it probably does not matter in terms of liability whether this vehicle had been visible to the plaintiff as a vehicle moving south some distance ahead of him, which he simply did not notice at that time because it was irrelevant to him, or whether it had been stationary in the position in which the plaintiff says he first saw it for some time before he came upon it. [15] The plaintiff marked the position of the stationary vehicle on the photograph on p 4 of Part F of Exhibit 1; this is effectively in the inset part of the side wall to the exit ramp at about the point where the ramp widens into two lanes and then begins the slip lane on the left. For reasons known only to traffic engineers, the wall to the left of the exit lane is not a smooth curve, but has this short area where it widens out a bit at the point where the slip lane begins, which may have encouraged the driver of the unidentified vehicle to think that was a safe place where he could stop to do whatever he was doing there. It is apparent from photographs 1 and 3 that a vehicle in this position would only be visible from a certain distance back along the exit ramp, because of the height of the wall close beside it.8 A person following the plaintiff‟s route would go into the exit ramp and as he began to climb would come around a gentle curve to the left and then be confronted with a vehicle that was stationary in a position where it obstructed the natural path into the slip lane. [16] The visibility is such that, had the plaintiff been watching the road the whole time, he may well have seen the stationary vehicle in sufficient time to react and to go around it without too much difficulty, but the plaintiff was distracted by his mirror check, which must have taken place at about the point when the stationary vehicle would otherwise have come into view. By the time the plaintiff realised the vehicle was there it was necessary for him to swerve to the right to avoid it, and that would have put him in a position where he had to swerve to the left to avoid the vehicles which were lined up at the traffic lights on the exit lane. [17] The plaintiff‟s version of how the accident occurred is therefore plausible. The defendant has not I think really proposed a plausible alternative explanation which 8 Exhibit 3 is a DVD of this approach, and provides some idea of the limit of visibility but has the disadvantages that it was raining during the filming, and it shows the view of a passenger in a car, not the driver of a prime mover. -- 5 of 17 -- 6 does not involve the presence of the unidentified vehicle stationary at the side of the slip lane. Initially it seemed that the defendant‟s hypothesis was that the plaintiff had been travelling behind other vehicles which were running up to the traffic light but had failed to allow for their reduction in speed and had to swerve to his left at the last minute to avoid colliding with them, but this did not allow for the fact that, on the journey that the plaintiff was making that afternoon, it was appropriate for him to turn left at this intersection, so that he would have been heading for the slip lane rather than into a lane which led to the traffic lights. [18] Ultimately it appeared that the defendant‟s alternative hypothesis was that the plaintiff was heading into the slip lane but as he approached the traffic island he realised that he was going too fast to be able to stop in time to avoid running into the back of other vehicles that were queuing up in that slip lane waiting to turn left, presumably blocked by other traffic coming from their right along the Nerang- Broadbeach Road. In such a situation the plaintiff would have been left with no alternative but to swerve to his right and run the semi-trailer onto the traffic island. Such a thing is possible, indeed it seems to me that Mr Snell effectively jumped to the conclusion that that was what had happened, but it would have required a remarkable amount of inattention on the part of the plaintiff, because it is apparent from the photographs under Tab F in Exhibit 1 that, had there been vehicles queued up in the slip lane which the plaintiff had to avoid in order to put his vehicle on the traffic island, he would have had visibility of those vehicles for some time. They would certainly have been visible from the point where photograph number 4 was taken, bearing in mind that was apparently taken from a car rather than with the additional height of a semi-trailer cab, and indeed the line of sight in photograph number 1 shows that it would extend back almost to the point where the barrier starts between the exit lane and the motorway, that is not far in front of the camera position in photograph number 3. [19] Once the plaintiff came around the corner curve at about that point, because of the irregular curve in the wall to the left, he had a view of the position where he says the unidentified vehicle was stopped and the road ahead right up almost to the Nerang- Broadbeach road at about the same time. He would have had to be both speeding and remarkably inattentive at that point to have failed to notice that there were vehicles waiting to turn left from the slip lane until he had come so close that he was unable to bring the semi-trailer to a controlled halt behind them, and had to swerve onto the traffic island. The plaintiff could not have been speeding all that much. The semi-trailer was governed to 100 kph, which was the speed limit, and an appropriate speed, on the motorway, and once he left the motorway his speed would naturally have declined anyway because of the slope that he was running up. In any case any driver of a semi-trailer would have been concerned to reduce his speed coming up to the Nerang Broadbeach road, because he had a relatively sharp corner to negotiate at the end of the slip lane. The plaintiff was familiar with this route. [20] Even if he was speeding in the sense that he was travelling at over the speed limit, which became 60 kph at about the point where the crash barrier to the right of the exit lane began, he still would have had plenty of time to stop if as he came around the corner it had become apparent that there were vehicles lined up in the slip lane waiting to turn left. Ultimately the defendant‟s alternative hypothesis as to how the -- 6 of 17 -- 7 accident came about strikes me as, not impossible, but less plausible. Apart from this, I was generally impressed with the plaintiff as a witness, and consider that he was not significantly shaken in cross-examination. Most of the statements that he was proved to have made were not significantly inconsistent with the account given in the witness box. [21] If one adopts an appropriate degree of caution in dealing with the evidence of Mr Snell, who was prone to reconstruction, it is easy enough to see how the plaintiff could have given an account to Mr Snell which was essentially consistent with his evidence in the witness box, which Mr Snell misinterpreted because of his assumption as to how the accident had happened. The version given in the notice of claim was not actually written out by the plaintiff, and is dated the same as Exhibit 13 which is consistent with the plaintiff‟s evidence. As to the evidence about the admission of speeding, I expect the plaintiff was speeding in the sense that he went past the 60 kph sign at rather more than 60 kph, but I expect that the same could be said for virtually every vehicle that travelled up that exit ramp, and I do not think that the plaintiff‟s speed was of any real significance in the incident. [22] I am conscious of the need for appropriate caution when assessing a claim of this nature, where the driver of the other vehicle is not able to give evidence potentially to contradict the plaintiff‟s version.9 Nevertheless, bearing in mind the plaintiff‟s evidence as a whole and the submissions on behalf of the defendant, I consider that the plaintiff‟s account is essentially truthful, and accept that the accident occurred in the way that he described. In particular I accept that there was a white utility parked in the position that he identified, and that it was the presence of this vehicle which caused him to swerve and ultimately led to his running his semi-trailer onto the traffic island. [23] It was not seriously disputed that on that version of events the driver of the unidentified vehicle was negligent. Despite the apparent attraction of this part of the exit ramp as a wider part where one could pull up if one had to, it is obviously not a suitable place to stop. It has the disadvantage that a vehicle stopped in that position would only be visible for a certain distance to the rear because of the curve in the large wall at the side of the exit lane, and that vehicles coming up the exit lane might be expected to be travelling at some speed because they would be running their speed down from highway speed, and they would not be expecting any obstruction at least until they came to the intersection with Nerang-Broadbeach Road. No one would expect a vehicle to be stopped in such a position. I considered it was plainly negligent, indeed fairly serious negligence, on the part of the driver of the unidentified vehicle to stop his vehicle in that position. Proper enquiry and search [24] The defendant submitted that the requirements of proper enquiry and search in s 31(2) of the Act had not been complied with. The defendant‟s point was that there was a failure to inform the police promptly after the accident of such information as 9 Van Muyen v Nominal Defendant [2002] QSC 344 at [31]-[34]. -- 7 of 17 -- 8 the plaintiff had about the unidentified vehicle, and that had that information been provided it would have assisted the police and enquiries by them could have been made.10 The test for proper enquiry and search was that laid down by the High Court in Harrison v Nominal Defendant (1976) 50 ALJR 330, dealing with a similar provision in the equivalent New South Wales legislation dating from 1942.11 Barwick CJ with whom the other members of the court agreed said at p 332: “The section does not, in my opinion, require that in every case, irrespective of its circumstances, some enquiry and search should have been made. Whether or not the identity of the vehicle might have been established after enquiry and search appropriate to the circumstances of the case had been made is a question of fact. That in my opinion is the relevant issue in a case brought under [the section]. It is not whether some enquiry and search has been made. The presence of the word „due‟ in the sub-section emphasises that the question is whether the identity of the vehicle cannot be established though such enquiry and search as might appropriately be made in the circumstances of the case had taken place.” [25] His Honour went on to give an example of a situation when enquiry and search would be obviously futile. In my opinion that was also the situation here. There was nothing distinctive about the vehicle, or about such description of it or its driver as the plaintiff was able to give, and, in circumstances where the unidentified vehicle was not itself directly involved in the collision, and where there was apparently no serious injury suffered by the plaintiff in the incident, it is inconceivable that any serious attempt would have been made by the police to identify the driver of the white utility no matter how promptly the matter had been reported to them. Some attempt was made later, by advertising in the newspaper, to locate the vehicle or any witnesses who could provide relevant information12, and a formal report was made to police, but unsurprisingly neither of these achieved anything, and I think that this is one of those cases where the test would have been satisfied even if there had been nothing done at all by way of enquiry and search. In my opinion this ground of defence fails. Contributory negligence [26] It is apparent from the photographs that even a vehicle parked where the plaintiff said it was parked, and off the side of the road to the extent that that could reasonably have been achieved (which was not much), would still have been visible for some distance back along the exit ramp. Indeed, I think that, but for the fact that the plaintiff was distracted by his mirror check at the crucial moment when the vehicle would first have come into view, he may well have been able to deal with the situation in a way which left his vehicle under better control. It was not contributory negligence for him to be doing a mirror check. It is a part of ordinary good driving practice to do mirror checks, and he said, and this was not contradicted, that he was required to do mirror checks by his employer: p 22. But 10 The defence para 4 also refers to a failure to report this to Mr Snell or Mr Gillon, the relevance of which escapes me. 11 That section used the word “due” instead of “proper”, but the meaning is the same. 12 Exhibit 1, Tab A. -- 8 of 17 -- 9 the plaintiff gave evidence that he would spend two seconds doing a mirror check: p 47. That strikes me as quite a long time. It might have been acceptable on an undemanding stretch of highway, but in circumstances where there was a limit to his forward visibility it was in my opinion not reasonable for him to be spending that length of time or anything like that on a mirror check.13 [27] If the plaintiff had been watching to the limit of his visibility around the curve in the wall to the left of the exit ramp as he came up the ramp he should have had sufficient warning of the presence of the parked vehicle to have been able to respond better than he did, and that would probably have avoided the sort of response which ended up in his driving on to the traffic island. I consider that, bearing in mind the limit to his visibility, he must have spent more than a reasonable amount of time on his mirror check in that situation, so that by the time he became aware that the parked vehicle was in front of him he did not have sufficient time to react safely to it. In that way he manifested a failure to take reasonable care for his own safety, essentially by failing to keep a proper lookout in all the circumstances. I do not think that, even if he were travelling above 60 kph beyond the sign, that that was a manifestation of a failure to take reasonable care for his own safety; keeping strictly below that speed limit was not something that in the circumstances a reasonable person in his position would have done, so s 9(1)(c) of the Act, made applicable by s 23, was not satisfied in relation to excessive speed.14 [28] With regard to apportionment, it was the driver of the unidentified vehicle who created the situation, and who should bear the bulk of responsibility for the plaintiff‟s subsequent loss of control of his vehicle, and consequent personal injury. Nevertheless, because the plaintiff took his eyes and attention off the road ahead for longer than he ought to have in these circumstances, I consider he should bear some responsibility for the resulting injury, and would apportion 20 per cent responsibility to the plaintiff. Quantum [29] Following the accident the plaintiff felt pain in the right leg where he had had a burn from the steering wheel, his neck, shoulders and back: p 30. He was taken by ambulance to the Robina Hospital, where his burn was dressed. The records of the hospital show complaints of left sided and central neck pain, and mild LUQ tenderness. 15 He was given pain relief and some tests were undertaken; his neck was examined by a consultant but he was cleared to go home.16 The plaintiff said that the day after the accident he was so sore he could hardly walk and couldn‟t turn his neck: p 30. He attended his GP who ordered an x-ray of the cervical spine and dressed the wound on the left thigh.17 On 27 February he was seen again by the GP 13 The two seconds is quite possibly an overestimate, perhaps a severe overestimate, but in the circumstances there must have been more than just a glance of the mirrors otherwise he would have had more warning of the presence of the vehicle at the side of the road. 14 I am not persuaded that he was travelling at a speed which displayed a lack of reasonable care for his own safety in the circumstances known to him, or which he should reasonably have anticipated. 15 Left upper quadrant tenderness, suggestive of possible damage to his spleen. 16 Ex 1, Tab B, p 41-43. 17 Ex 1, Tab B, p 13. -- 9 of 17 -- 10 who referred him for physiotherapy and recommended a heat pack and some medication. By 2 March he was telling a GP that his neck pain had increased, but he had then no neurological symptoms.18 Later when he was put on driving an ordinary truck, he found this very painful and as a result had a week off work: p 31. This was after he had tried to persevere for three days. When he returned to work he was on light duties, office work and so on. The burn on his thigh resolved over about two weeks, though it left him with a brown mark on his thigh about an inch and a half wide and four inches long, noticeable when he is wearing shorts, though he is not bothered by it: p 33. He had physiotherapy for a time: p 32. The physiotherapist confirmed that the plaintiff had presented with neck and thoracic pain with headaches; he was seen 31 times, for the last time on 7 August 2009.19 [30] The plaintiff was unable to return to normal work driving a semi-trailer, as he then had difficulties in coping at supermarkets with the process of unloading cages which had been loaded onto the semi-trailer: p 33. He was put on an ordinary truck delivering pallets for a time, but in October or November 2009 the sort of work he was doing changed so that he was delivering goods to a department store, which did not involve moving the goods around: p 34. He stayed doing this work for about two months and then moved to delivering soft drinks, which are on pallets: p 36. [31] He still finds his neck gets sore if he sits in the one position for a long period of time, and sometimes has problems when he is opening the curtains on the trailer. He is able to use ordinary work breaks to prevent this from becoming too uncomfortable. He did not consider that he would be able now to do what he described as “long haul work”: p 37. He hopes to stay with his present employer, a fairly large company where it seems that he has a reasonably sympathetic boss who would look after him if the need arose (p 37), though his immediate supervisor does not consider that at the moment there are any relevant restrictions in the work that he can do.20 Before the accident he was doing a lot of weekend work but since the accident this has been rare: p 35, p 71. He will still do additional work when it is available (p 63) but it is not available often: p 73. [32] The plaintiff said the pain stabilised in about July 2009; he still has neck and upper back pain, and sometimes wakes up with headaches as a result of which he takes Nurofen about three or four times a week: p 32. He does not do as much exercise as he used to because he now has to be careful, and has put on about 20 kilos since the accident: p 37. He said he has not continued with the physiotherapy because he could not afford to: p 38. Medical evidence [33] The plaintiff was seen by an occupational physician, Dr Butler, on 31 March 2009 for the purposes of a report to the employer.21 After an examination and viewing 18 Ex 1, Tab B, p 12. 19 Ex 1, Tab B, p 59. 20 McGrath, p 66. If he was aware a driver had problems such as a sore neck he would try to look after him: p 67. 21 Ex 1, Tab B, p 47. -- 10 of 17 -- 11 the CT scan he said that the plaintiff had suffered a musculo-ligamentous strain of the neck, though there was no indication in a CT scan of any bone injury. He noted that generally people recover within a period of a few months with such a strain though some cases take much longer. He recommended a gradual return to work, and set out some relevant information for formulating a program for this. [34] On 13 May 2009 the plaintiff‟s general practitioner expressed the opinion that he was suffering from musculo-ligamentous neck strain as a result of the collision; he then thought that the plaintiff would recover in a few months.22 He also noted that there was no aspect of the examination which suggested that the condition was not genuine. At that time he expected that the plaintiff‟s hours would gradually increase and be back to full time over about eight weeks. [35] The plaintiff was seen by an orthopaedic surgeon, Dr Gillett, on about 25 May 2010 for the purposes of a report to the plaintiff‟s solicitors.23 The plaintiff was complaining of continuing pain in the neck, with restriction in range of motion, and with headaches three or four days a week. Activity aggravated the neck and he had some pins and needles in the left hand at times. There was also thoracic pain and right shoulder girdle pain, particularly if there had been bending or twisting. On examination there was no neurological deficit, neck movement was guarded in rotation with the left side worse than the right side, with lateral flexion reduced as well. Thoracic movement felt painful at the extremes but with no guarding spasm or asymmetry. Lumbar sacral range of motion was normal. There were some indications in the CT scan of degeneration in the cervical spine. [36] Dr Gillett described the plaintiff‟s injuries as chronic musculo-ligamentous strain to the cervical spine with referred pain to the right shoulder, and musculo-ligamentous strain involving the thoracic spine. He did not expect any change in the condition; there had been a permanent aggravation of age related degeneration. The plaintiff was limited in relation to the type of work he did, and more manual handling than the current minimal amount would cause problems. It was better for him to do short haul rather than long haul work, and for goods to be loaded and unloaded by others. [37] Dr Gillett recommended weight reduction to improve fitness and his general physical condition, and expected that intermittent use of analgesia would be required. Assessed by the AMA tables there was zero per cent impairment in the thoracic spine and five per cent impairment of the whole person in the cervical spine, all of which was related to the accident. In a supplementary report24 Dr Gillett explained his assessments under the AMA tables, and gave the familiar explanation of the difference between disability and impairment. He did not consider that ongoing physiotherapy was required, though it may be appropriate on occasions to treat a particular flare up in the condition, to speed up the recovery from the flare up. He had in mind two to three treatments for two years.25 Dr Gillett did not resile from his opinions during cross-examination. 22 Ex 1, Tab B, p 50. 23 Ex 1, Tab B, p 53. 24 Ex 1, Tab B, p 60, 3 June 2011. 25 Further supplementary report p 64, 14 June 2011. -- 11 of 17 -- 12 [38] The plaintiff was seen on 26 July 2010 by Dr Morgan, an orthopaedic surgeon, for the purposes of a report to the defendant‟s solicitor: Ex 14. At that time the plaintiff complained of pain in the cervical spine, with headaches three or four times a week, intermittent numbness in the tips of the fingers of the left hand, after protracted driving, and pain in the right elbow made worse by lifting, bumping or twisting. No complaint was recorded of pain in the thoracic spine. On examination there was some loss of flexion and extension of the neck, although some of this was attributed by Dr Morgan to the plaintiff‟s build. There was a complaint of pain at the extremes of the ranges. There was also loss of lateral flexion and rotation. Neurological examination was generally normal but there was some paresthesia in the thumb and index finger on the left side, and some wasting of the abductor pollicis brevis muscle. There was tenderness in the right elbow joint but no other problem was detected. There were indications of natural degeneration but no obvious traumatic anomaly. [39] Dr Morgan thought there were some symptoms indicating a left carpal tunnel syndrome, but this was not related to the accident. There was also some indication of a problem with the right elbow which was not related to the accident. He did consider that the plaintiff had sustained musculo-ligamentous strain to the neck which produced a five per cent whole person loss of function according to the AMA guides. Dr Morgan thought the plaintiff could continue to work as a truck driver, or as a mechanic, greenkeeper, landscaper, car park attendant, gate attendant or traffic warden. He thought the plaintiff would benefit from a reduction in weight; he did not require special or ongoing orthopaedic care and Dr Morgan thought the impairment was likely to remain at its current level indefinitely. [40] In a supplementary report of 3 June 2011 (Ex 15), Dr Morgan expressed the view that the plaintiff was equally capable of long haul and short haul driving, and did not consider that the condition would be made any worse by physically loading items onto trucks, although it might produce some temporary discomfort. He also considered the plaintiff was capable of undertaking full time duties as a coach driver. Under cross-examination he acknowledged that this could involve loading and unloading luggage, but believed that this would remain within his functional limits: p 6. He thought that there would be some problems with the manual work associated with truck driving, but his assessment of the particular individual was that he fell into the category of patients who could cope with the sort of activities involved in doing that notwithstanding the problem in the neck: p 4. [41] Dr Morgan acknowledged that static posturing can cause pain in the cervical spine for someone with the plaintiff‟s injuries, but nevertheless thought that there was not much difference between long haul and short haul work, because the latter would involve more loading and unloading and more traffic to negotiate and other things which would put strain on the neck: p 5. I understand that point, though in the context of this plaintiff it shows why his current employment is particularly favourable, because it is short haul work where he is not directly involved in loading or unloading. I think the point here is that if he lost his present employment and had to work as a truck driver, either in short haul work which involved his loading and unloading the truck, or in long haul work, he would get more symptoms and have greater difficulty in coping. -- 12 of 17 -- 13 [42] Dr Morgan agreed that the plaintiff was indicating that he had pain in the upper part of his back, above his shoulder blades, but he attributed this pain to the problem in the cervical spine, rather than treating it as a separate problem in the thoracic spine: p 3. This explains an apparent inconsistency between him and Dr Gillett, since he did not identify a separate injury in the thoracic spine. It appears therefore that the point is not that the plaintiff had omitted to mention problems with the thoracic spine to Dr Morgan. Dr Morgan also thought that the plaintiff would suffer less pain in the neck if he were able to reduce his weight, for reasons which he explained and which do sound plausible, notwithstanding that the weight loss would be below the neck rather than being supported by it: p 5. General Damages [43] The plaintiff was born on 22 November 1968, so he was 40 at the time of his injury and is now 43: p 18. He is separated from his wife and has access to their four children. He has an employment history mostly as a truck driver or something similar, or as a machine operator or labourer; Exhibit 4. He completed a greenkeeper‟s apprenticeship but does not seem to have worked as one. He originally came to be driving trucks with his current employer through working with a labour hire organisation, but has been working for his current employer directly since March 2006: p 61. He would like to continue to do so, as indeed was his desire prior to the accident: p 20. [44] It appeared to be common ground that the dominant injury was the injury to the cervical spine, which produced a five per cent whole person impairment; there was also significant disability associated with the injury, because of pain. This fell within Item 88 in Schedule 4 to the Regulation. The impairment suggests an ISV of less than ten, but it is necessary also to take into account the pain (Sch 3, s 9) and the other injuries, the burn to the right thigh which is quite minor in itself and the injury to the thoracic spine. Whether this is treated as a separate injury or as an additional area of pain associated with the injury to the cervical spine probably does not matter given that the latter is the dominant injury; it is clear that his problems with the upper back are much less significant than his problems with the neck. In these circumstances some uplift is appropriate, and I allow an ISV of 12. This produces an award of general damages of $13,800. Special damages and future costs [45] The special damages claimed are medical expenses paid by the workers compensation insurer, which are recoverable, of $8,972.25,26 together with medication expenses, on the basis of $11 per week27 for pain killers up to the time of the trial; this should now be increased to 3.5 years, which comes to $2,002. Accordingly the total for special damages is $10,974.25. Interest may be allowed on $2,002 at 3.09 per cent28 for half the time since the date of the accident, 1.75 years, which is $108. 26 Ex 1, Tab D, p 6. 27 Plaintiff p 38. 28 Civil Liability Act 2003 s 60. -- 13 of 17 -- 14 [46] With regard to future costs, it is reasonable to expect that the medication expenses will continue, subject to some discounting for the vicissitudes of life. The plaintiff‟s life expectancy is 43 years, and with a multiplier of 938 this produces a figure of $10,318, but this should be discounted to $8,000. With regard to physiotherapy, the plaintiff has not had this in the past because he has not been able to afford it: p 38. Dr Gillett did not endorse regular physiotherapy, though he expected that the plaintiff would require physiotherapy occasionally in order to deal with flare ups caused by some particular activity which stirs up the neck. That is reasonable, and some allowance should be made for this; I expect the plaintiff would probably have the physiotherapy if he could afford it. The amount suggested by Dr Gillett was quite modest, three visits per two years, which at $60 a visit comes to $1.73 per week, $1,622.74 over 43 years, which I will again discount to $1,200, to allow for vicissitudes of life and because the plaintiff will probably be less likely to experience events which stir up the neck once he retires, in about 20 years time. A small allowance of $500 was sought for future travel costs, which was not particularly contentious. Overall future costs came to $9,700. Past economic loss [47] Prior to the accident the plaintiff in a training position, giving instruction to new drivers, and he was removed from that position following this incident: p 34. It was submitted that the plaintiff had lost the driving instruction work because he had suffered the injury in the accident, but I am not persuaded that that was the case. It appears rather that the employer took him off that work because of the accident rather than because of any injury suffered in it. The plaintiff argued that, although he was initially taken off the driver training because he had had the accident, this was subject to review which did not occur because he was then on an extended rehabilitation programme. This was on the basis of the evidence of an operations and site manager of the plaintiff‟s employer,29 but the evidence did not go as far as to say that, had the plaintiff not been injured, he would probably have been put back in driver training, and the manager did say that this had nothing to do with the injury.30 As well, the accident was treated as a “strike” for the purposes of the employer‟s three strikes policy,31 which indicates that it regarded the plaintiff as being responsible for the purposes of that policy, and in these circumstances it is unlikely he would have been put back in driver training. [48] In any case there is a conflict of evidence as to whether he suffered any economic loss as a result of this decision. The plaintiff said he was getting more money as a result of this because he did in effect ten hours extra work a week (p 34, p 62), but his supervisor said that he was neither getting more money nor working additional hours for this work.32 Unfortunately neither was crossexamined on this point, which may mean that I should not decide it. Fortunately I do not need to decide it, as I do not consider that any loss was caused by the plaintiff‟s injury, but if I had to decide it, I would prefer the evidence of the supervisor, because there was no basis shown for not accepting his evidence, but there were other aspects of the plaintiff‟s 29 Davidge p 41 line 17. 30 Ibid line 32. 31 Ibid line 52. 32 Davidge p 40. -- 14 of 17 -- 15 evidence which I have not accepted when it was in conflict with the evidence of another witness. It may be that while the plaintiff was doing that work he was not doing other deliveries which would have been available to him had he not been doing the driver instruction work. [49] It was also submitted that as a result of the accident the plaintiff lost weekend work which was otherwise lucrative. The plaintiff claims he worked 12 to 14 hours on Saturdays (Ex 6) with the first two hours at time and a half and the balance at double time. It appears that the applicable hourly rate was about $20.50, increasing up to the date of trial to about $22.50, so Saturday work was worth $389.50 to $427.50. However not all the Saturday work was lost, and it may well be that he would not have worked each and every Saturday had the accident not happened, so subject to my conclusions below I would allow 120 weeks up to the date of judgment, from when the plaintiff returned to work after the compensation claim ceased in July 2009. [50] It was evident that he had lost some income as a result of moving from the supermarket work to the department store work, but the evidence is that this move occurred because of a clash between the plaintiff and another employee who was a union representative, with the result that it was the plaintiff who was moved on: p 62.33 It has not been shown that this difficulty with the other employee arose out of the plaintiff‟s injury, indeed it has not even been shown clearly that the difficulty arose out of the accident, although the plaintiff asserted that the accident was three quarters of it: p 62. No explanation for this connection was given. I do not consider that the loss is compensable unless it is related to the injury rather than the accident; this follows from the terms of the Motor Accident Insurance Act s33(1), dealing with claims against the nominal defendant.34 Accordingly insofar as the plaintiff lost income as a result of the move to the shopping centre contract, and subsequently the move to the soft drink contract, which was at his own request, rather than continuing to do the supermarket work, that is not recoverable.35 [51] The question then arises whether the loss of overtime is consequent on the move out of the supermarket work. My impression at the trial was that the plaintiff had lost the overtime before he left the supermarket work; p 35. He was put on a body truck delivering pallets rather than roll cages until October or November 2009, when he moved to the department store contract; p 33-34. His rehabilitation programme ended at the end of July 2009,36 so the loss of overtime for the next three months was caused by his injury. This loss is compensable. It is not clear whether the loss of overtime prior to then was covered by his workers compensation. After he moved to the other contracts, it seems he did what overtime he could get (p 63) so it appears that the loss of overtime was due to his not doing the supermarket work. That, for reasons already stated, was not shown to have been caused by the injury, so the loss of overtime is not compensable. The loss for three months (12 weeks at $390) comes to $4,680. 33 See also Davidge, p 42 34 It need not be caused only by the personal injury, but some causal connection must be shown. 35 McGrath p 64. The evidence indicates that this move was to his advantage, as it gave him more hours, although the hourly rate was slightly lower: plaintiff p 36, p 63. 36 Exhibit 1 Tab D p 14. -- 15 of 17 -- 16 [52] It follows that the past economic loss is limited to the amount refundable to the workers compensation insurer ($19,882.81), and compensation for the lost overtime, but not the lower hourly rate because the plaintiff is not doing the supermarket work. These amounts total $24,562.81. The loss of overtime will carry interest for three years at 3.09 per cent, $434. Future economic loss [53] With regard to future economic loss, it is to be expected that any current loss will continue into the future but none has been shown. If the plaintiff is able to continue to do his current work until he retires, and if he is able to continue to cope with that, which seems likely, that should be the limit of his economic loss in the future. However, his current work is relatively easy work for truck drivers,37 since he is not involved in actually loading or unloading the vehicle, and he is driving relatively short hauls, which suits him. He said that he would not be able to cope with long haul work because of the extended sitting in the one position (p 37), and I think that it is likely that that sort of work would cause him increased pain and he would have difficulty coping with it, and could well be unable to continue in such work for an extended period. In the same way, he would have difficulty in doing short haul work which involved a more significant loading and unloading effort on his part. Overall then although he can still work as a truck driver, he is likely to face difficulties unless he is able to obtain the sort of relevantly easy driving work that he has at the present time. In this respect therefore he is at risk in the labour market. [54] The current employer is a large company with a lot of work and the evidence suggests that it is generally satisfied with his work record. Obviously, however there is always a risk that anyone might be forced into the labour market, and if that occurs for the plaintiff it is likely that he will have more difficulty than would otherwise have been the case in obtaining suitable alternative employment with which he can cope. He still has about 20 years working life, so he may well be faced in the future with having to resort to the labour market on more than one occasion. If that happens it may well take some time before he is able to settle in alternative suitable employment. It may be that he could cope with some types of long distance coach driving; the effect of this would probably not be clear unless and until he actually tried it. If that situation arises he may find he can cope and he may find he cannot. [55] Obviously this is not a situation where any loss of this nature can be precisely calculated. It is also a situation where the amount of the loss is dependant upon various possibilities, but due allowance must be made for all realistic possibilities, including unfavourable ones.38 How this is done is largely a matter of impression, though it is relevant to take into account the sort of income he has been earning, the opinions of the experts as to his prognosis, and my assessment of him as an individual, having seen him in the witness box. In view of this, I can understand why Dr Morgan takes an optimistic view of his ability to cope, but obviously there is a possibility that this view may not be justified by events, and allowance must be 37 McGrath p 68. 38 Ballesteros v Chidlow [2006] QCA 323. -- 16 of 17 -- 17 made for that. On this basis, I think that a reasonable allowance for future economic loss on a global basis is $80,000. This is somewhat less than 18 months net income at his current rate,39 so that it would be roughly the equivalent of 18 months loss of net income with some discount. In view of the way in which this figure has been derived, I do not propose to add a further amount by way of lost superannuation benefits. Conclusion [56] Accordingly the plaintiff‟s damages may be summarised as follows: (a) General damages $ 13,800.00 (b) Special damages $ 10,974.25 (c) Interest on special damages $ 108.00 (d) Past economic loss $ 24,562.81 (e) Interest on past economic loss $ 434.00 (f) Future costs $ 9,700.00 (g) Future economic loss $ 80,000.00 TOTAL $139,579.06 [57] This amount is to be reduced by 20 per cent for contributory negligence. Accordingly there will be judgment that the defendant pay the plaintiff $111,663.24 including $433.60 by way of interest. I will hear submissions in relation to costs when these reasons are delivered. 39 About $55,000 per annum: Exhibit 1 Tab C p 107. -- 17 of 17 --