Coxall v Johnston & Anor [2006] QDC 391

DISTRICT COURT OF QUEENSLAND CITATION: Coxall v Johnston & Anor [2006] QDC 391 PARTIES: SANDRA JANICE COXALL Plaintiff and DUSTIN JOHNSTON First Defendant and FAI ALLIANZ LIMITED Second Defendant FILE NO/S: No BD26 of 2005 DIVISION: Civil Jurisdiction PROCEEDING: Hearing ORIGINATING COURT: Brisbane DELIVERED ON: 29 November 2006 DELIVERED AT: Brisbane HEARING DATE: 14 and 15 November 2006 JUDGE: Samios DCJ ORDER: Judgment for the plaintiff against the second named defendant for $80,613.76. CATCHWORDS: Negligence – Road accidents – Apportionment of responsibility – Van driver reversing into loading bay strikes pedestrian waiting to cross road – Quantum – Post-traumatic stress disorder. Commissioner of Railways v Ruprecht (1979) 142 CLR 563, 570 McLean v Tedman (1984) 155 CLR 306, 311-312, 315 McPherson v Whitfield (1996) 1 QdR 474 O’Shea v Permanent Trustee Co. of NSW Ltd (1971) QdR 1, 11 COUNSEL: Mr C Newton for the plaintiff Mr K Howe for the defendants SOLICITORS: Carter Capter for the plaintiff McInnes Wilson for the defendants -- 1 of 15 -- 2 [1] On 11 January 2002 the plaintiff went shopping with a friend at the Chevron Renaissance Shopping Centre at Elkhorn Avenue, Surfers Paradise. [2] At about 2.25 pm after doing her shopping the plaintiff walked on to Elkhorn Avenue outside the shopping centre and was struck by a van. [3] The plaintiff who was then 55 years of age, suffered personal injuries in the collision. [4] The last time before the collision the plaintiff had been in gainful employment was about fifteen months earlier. Further, the plaintiff had suffered from a number of stressful events in her life before the collision. In 1997 her estranged partner was bashed to the extent he suffered acute brain damage. In 2000 her daughter separated from her husband and in March 2001 the plaintiff’s grandmother, whom she regarded as her mother and was very close to, died. The plaintiff was being treated for depression before the collision and was on Centrelink benefits on the basis that she was unfit for work because of depression. [5] These proceedings are the plaintiff’s claim for damages for personal injuries, loss and damage. [6] The issues are that of liability of the driver of the van for the collision, the plaintiff’s contributory negligence (if any), the extent of the plaintiff’s injuries and the quantum of her damages, in particular her damages for past and future economic loss and past and future Griffith v Kerkmeyer damages. Liability [7] Elkhorn Avenue is one-way from east to west. On leaving the shopping centre, the plaintiff and her friend intended to walk north. -- 2 of 15 -- 3 [8] The plaintiff said that when she came out of the shopping centre she had a bag of groceries in each hand. The street was very busy. She stood together with her friend. When the traffic was totally clear from her right, she looked to the right, looked to the left and looked to the right again and when it was totally clear of traffic she took a couple of steps out on to the roadway. All she could remember was flying through the air and a tremendous burning pain in her head. [9] There was no reversing alarm fitted to the van at the time of the collision. The plaintiff said she did not see the van before the collision. She was hit on her left- hand side. [10] The plaintiff’s friend, Mr Moore, said they came out of the shopping centre and stood on the edge of the kerb, where the traffic was flowing from the right. The plaintiff was a few steps in front and said “Come on Artie, come on”, and he was just about to move off. He got one foot off and looked to his left and saw the van backing up and it came backwards and struck the plaintiff on the left shoulder. The plaintiff was looking to the right. The plaintiff was struck twice. She flew in the air and her head hit the ground. He said the van was coming back fairly quickly. [11] The driver of the van, Mr Johnston, said he was heading west in Elkhorn Avenue. He could not find a parking position on the right-hand side of the road. He pulled into a driveway, did a U-turn, turned back in front of the shopping centre to park, and reversed his van backwards to fit into the carpark. As he reversed backwards, he sort of rolled back so he could line his van up, the lady walked past him and all he felt was a slight thud. -- 3 of 15 -- 4 [12] The photographs and plans tendered in evidence show loading zone areas next to the footpath where the plaintiff and Mr Moore indicated they were standing before the collision. [13] The investigating police officer gave evidence of statements made by the plaintiff, Mr Moore and Mr Johnston after the collision. Except for an entry in her police report indicating the van driver was reversing to the west when the collision occurred, broadly speaking the statements are consistent with the evidence of the witnesses. [14] However, I prefer the evidence of the plaintiff and Mr Moore about the direction in which the van reversed than the evidence of Mr Johnston. That is because the plaintiff and Mr Moore are consistent with each other that the van reversed to the east. On the other hand Mr Johnston’s diagram to the loss adjuster is inconsistent with another diagram by Mr Johnston in his Notice of Accident form showing different directions of travel for the plaintiff. Further, I did not think Mr Johnston gave a satisfactory explanation for the difference. Mr Johnston also said he did not see from where the plaintiff came but he was prepared to nominate her direction of travel saying that had been provided by other witnesses and yet in his evidence-in- chief said, when describing the events “the lady walked past me” (Transcript 68/40). I was not impressed by Mr Johnston as a witness. [15] I find the van reversed to the east into the loading bay zone in front of the entrance to the shopping centre. The plaintiff was heading north but was stationary about three steps out from the kerb when she was struck on her left-hand side by the van. The plaintiff was stationary for a short time before she was struck by the van. When the plaintiff was struck by the van the plaintiff was looking to the right. The -- 4 of 15 -- 5 van reversed at a fast rate of speed. Mr Johnston could have seen the plaintiff who was in the parking area into which the van was being reversed. [16] I find Mr Johnston guilty of negligence for failing to keep a proper look out, failing to stop or slow down before colliding with the plaintiff and reversing the van at an excessive speed in the circumstances. Contributory Negligence [17] This issue does not depend on the existence of a duty of care owed by the plaintiff to the defendant. Contributory negligence involves conduct which exposes the plaintiff to the risk of injury without exposing others to risk (Commissioner of Railways v Ruprecht (1979) 142 CLR 563, 570). [18] The defendant must prove on the balance of probability that the plaintiff failed to take reasonable care for her own safety, and contributed, by that want of care, to the injury or damage that the plaintiff suffered (O’Shea v Permanent Trustee Co. of NSW Ltd (1971) Qd R1, 11 per DM Campbell J; McPherson v Whitfield (1996) 1 Qd R474). [19] What amounts to reasonable care is a question of fact to be determined in the light of all the circumstances of the case (McLean v Tedman(1984) 155 CLR 306, 311- 312, 315). [20] I find the plaintiff looked to the left and saw no vehicle in that direction. I find the van was driven west past the plaintiff who did not then see it. I find the van reversed towards the plaintiff’s left. I find the plaintiff ought to have continued to look both ways in case a vehicle was reversing into the area where she was standing. I find the plaintiff’s attention was to the right rather than both directions. -- 5 of 15 -- 6 I find the plaintiff guilty of contributory negligence for failing to take reasonable care for her own safety by failing to keep a proper lookout. Apportionment [21] As between Mr Johnston and the plaintiff, I apportion 80 per cent of the blame to Mr Johnston and 20 per cent of the blame to the plaintiff. Quantum [22] The plaintiff suffered physical injuries. She had blood running down her back and arms. She was taken to the hospital by ambulance. [23] She had what she described as a round hole in her head, needles were put in her head to deaden the area and gravel scooped out and then it was stitched up. [24] She had a frightening time in the room in which she was placed in hospital with drug addicts. [25] She was on holidays at the time with her daughters, her daughter’s children and Mr Moore. She went back to the apartment from the hospital and was looked after by her daughters. She had to have the drapes shut because she saw flashing lights. She thought she was going to die in the apartment. She was vomiting all the time. She could not hold herself up. She was held up by her daughters to go to the toilet. She described it as a nasty time. [26] She also had pain and headaches. She could not stand bright lights or noise. [27] Back in Melbourne, one of her daughters came and helped her. She was helped with washing her hair and cleaning up the vomit, housework, meals and other jobs. -- 6 of 15 -- 7 The plaintiff’s left knee was very painful and her head was sore to touch where it was shaved. She underwent physiotherapy on her knee. [28] She continued to have the headaches. Her shoulder and across the top of her back would play up. She also injured one of her ribs. She said she felt like she injured all her ribs. [29] It took a fair time for her shoulder injury to recover. Her rib pain continued for about three months. She could then have trouble with her rib when gardening but she learned how to avoid that. Her neck at present is okay. Her lower back took a long time to resolve, she no longer has any problems with her lower back. [30] Regarding her psychological condition, the plaintiff described herself in the six months after the accident as “pathetic”. Besides being bad-tempered the plaintiff wanted things done her way and she did not want to drive. She does not now have the confidence driving in case something comes flying out and hits her. She feels the same crossing at a pedestrian crossing. Her lack of confidence in driving has had an impact on her activities with her daughters. Instead of her picking them up, her daughters now pick her up. [31] Her confidence in driving also impacts on her thoughts of returning to work. One day she can drive her car and the next day she feels like she will hit anything. [32] She also could not learn a new job. She would have to do something that would have no stress. Her left knee would prevent her doing a standing-on-her-feet type job, as would her headaches. A desk job would produce stress learning new things and the driving to the work would mean she would do a day’s work before she got to work. -- 7 of 15 -- 8 [33] The plaintiff said she has headaches associated with driving and other situations like looking after her daughter’s children. [34] The plaintiff said that she did not have these problems before the accident. [35] Dr King, an orthopaedic surgeon, in his report following an examination of the plaintiff in 2002 was of the opinion the plaintiff had an impairment because of the injury to the left lower limb and left shoulder. However, by the time of trial the plaintiff said her left shoulder injury recovered. Dr Dickinson, another orthopaedic surgeon, was of the opinion the left shoulder was clinically normal, as was the left knee. He said there was a little crepitus in the left knee but that was of equivalent degree to that of the right. Otherwise the plaintiff, according to both orthopaedic surgeons, has no other disabilities from the collision. Dr King’s opinion is that the left knee impairment amounts to a two percent impairment of the whole person. [36] Regarding the plaintiff’s headaches, Dr Stark, a neurologist, believes the plaintiff’s difficulties with memory and concentration are intermittent and associated with anxiety. Further, her headaches are a form of tension-type headache and are clearly associated with periods of anxiety. He considered assessment by a psychiatrist was the appropriate form of assessment given the nature of her ongoing complaints. Dr Sedal, another neurologist, was basically of the same opinion as Dr Stark. [37] The plaintiff has been seen by Dr Kaplan and Dr Walden, psychiatrists. [38] Dr Kaplan is of the opinion the plaintiff was traumatised by her frightening accident where she believed that her life was in jeopardy. She has, as a consequence, developed a post-traumatic stress disorder. As part of her condition she experiences intrusive thoughts, flashbacks and nightmares about the accident and she describes avoidance symptoms. She has developed a heightened sense of vulnerability and -- 8 of 15 -- 9 anxiety regarding car travel. She has developed intense separation anxiety when she focuses on her family members and, in particular, her grandchildren. She has as a consequence, become overprotective with her grandchildren and her fears have damaged her relationship with her older daughter. She experiences anxiety and at times depression and these symptoms are related to her chronic pain and its impact upon her life. She has become socially withdrawn, she suffers from insomnia, her appetite has been affected and she has gained a significant amount of weight. Dr Kaplan thought the symptoms were likely to persist for a prolonged period of time. [39] When the plaintiff saw Dr Kaplan on 14 April 2004 she did not tell him of her past psychiatric history. [40] However, for the purposes of his second report, Dr Kaplan was given information regarding the plaintiff’s partner’s injury in 1997, the separation of her daughter from her husband and the death of the plaintiff’s grandmother. He also had the records of the plaintiff’s general practitioner that showed, amongst other things, the prescription of anti-depressant medication at the times of stresses in the past and even on 3 January 2002, very soon before the collision. [41] On the other hand the plaintiff told Dr Kaplan these stresses were long resolved. Particularly she took a trip to England and Europe and came to terms with the loss of her grandmother. The plaintiff said in evidence she hired a car and drove around England for a month. [42] Dr Kaplan remained of the opinion the plaintiff’s symptoms would probably qualify for a diagnosis of a post-traumatic stress disorder. -- 9 of 15 -- 10 [43] In Dr Kaplan’s final report he recommended supportive psychotherapy for the plaintiff at a cost of $255 for twelve visits. He also recommended a trial of anti- depressant medication. [44] The plaintiff saw Dr Walden on 8 July 2004. The plaintiff told Dr Walden about the loss of her mother before the accident and that she felt quite depressed and was prescribed anti-depressant medication which she took for about six months. Otherwise the plaintiff told Dr Walden she had not been depressed although she mentioned the serious injury of her former partner. Dr Walden did not have the medical notes from the plaintiff’s general medical practitioner. [45] Dr Walden’s opinion was that the collision exacerbated the plaintiff’s feelings of depression and heightened her sense of anxiety with regard to the possibility of losing a loved one. Her anxiety regarding the crossing of the road and driving a car are causally related to the collision. Overall she considers the plaintiff’s symptoms are best accounted for by a diagnosis of adjustment disorder with anxiety and depressed mood. Overall she did not consider that the plaintiff fulfils the criteria for a post-traumatic stress disorder. Dr Walden attributed approximately 40 per cent of the plaintiff’s disability to pre-existing depression associated with the death of her grandmother and the other 60 per cent to the sequelae of the collision. She did not think the plaintiff’s current level of anxiety and depression would preclude her undertaking office duties on a part-time basis, which was the last work she did in 2000. [46] Dr Walden was later provided with the plaintiff’s Centrelink file. This showed that during 2001 the plaintiff was diagnosed with depression by doctors and was prescribed anti-depressant medication. The certificate stated that the plaintiff was unfit for work because of depression. Later Dr Walden was provided with the -- 10 of 15 -- 11 plaintiff’s notes from the general medical practitioner. With this information Dr Walden concluded the plaintiff had an approximate 50 per cent of her symptoms due to the sequelae of the collision and 50 per cent to factors unrelated to the collision. [47] Regarding the plaintiff’s credit, her evidence was supported by her daughters’ evidence. Her daughter Sharee supported her evidence about the impact the collision had upon her immediately following the collision, the need her mother had for care and assistance and how her mother was looking for work before the collision. Her daughter Juliette supported her evidence about her need for care and assistance and how her mother was looking for work before the collision. In particular, I thought Juliette gave realistic evidence about the discussions between herself and her mother when she said the discussions were “minor” and with “no great detail”. That is how I would expect the discussions to have taken place before the collision. That is, with no great emphasis between the two. Had Juliette, and for that matter her mother, wished to maximise the position for the plaintiff, Juliette may have said the discussions were regular and in detail. Although I did not see Juliette give her evidence, as her evidence was by telephone, I was nevertheless impressed by both her and her sister whom I consider gave their evidence in a straightforward and matter-of-fact way. [48] I was favourably impressed by Mr Moore. I accept his evidence and find the plaintiff was struck twice by the van. [49] I do not accept the plaintiff has been driven by deception when she failed to tell the psychiatrists about all her life’s events and how they have affected her. I consider the plaintiff in this area did not accurately express herself. In the context of the issues in these proceedings if she did accurately express herself she may have told -- 11 of 15 -- 12 Dr Kaplan about all her life’s events and that the effects had resolved as far as she was concerned. I consider that position is evidenced by the plaintiff’s trip overseas for two months and taking on driving for one month in England. Further, the plaintiff did mention her grandmother’s death to Dr Walden and that she was on the medication for six months for that event. The 1997 incident was about five years earlier and the plaintiff may very well have considered that had resolved or at least was overtaken by the other stresses. [50] I was favourably impressed by the plaintiff as she gave her evidence and I consider that her evidence is supported by her daughters’ evidence. I accept the plaintiff’s evidence. [51] There is a difference in opinion between Dr King and Dr Dickinson. As I accept the plaintiff’s evidence I prefer the evidence of Dr King regarding the plaintiff’s left knee injury. Further, I prefer the evidence of Dr Kaplan to that of Dr Walden. I accept, as did Dr Kaplan, the collision was, for the plaintiff, a traumatic event. I accept the plaintiff did not conceal anything deliberately with a view to minimising the past. I accept she suffers from the symptoms she has told Dr Kaplan about and these symptoms are genuine and serious to her. I find these symptoms were caused by the collision. [52] In all the circumstances I assess damages for pain and suffering and loss of amenities of life in the sum of $27,500. [53] I allow the plaintiff interest on $15,000 at 2 per cent per annum for 4.9 years which is a sum of $1,470. -- 12 of 15 -- 13 Special Damages [54] I allow the plaintiff, in accordance with Exhibit 1, the sum of $945.95 for special damages. [55] I allow the plaintiff interest on $377.50 of the special damages at the rate of 2.81 per cent per annum for 4.9 years which is a sum of $51.98. Past Economic Loss [56] I accept the plaintiff was looking for work before the collision. I accept she was not disabled from work at the time. I consider the plaintiff was well motivated for work and would have worked if work was available to her. One of the notes from her general medical practitioner dated 3 January 2002 shows the plaintiff was trying to taper off the medication she was on. However, the plaintiff had not fully recovered as the same note states “Going to grief counselling shortly”. [57] I accept the plaintiff could have found work that may have paid her in the region of $300 per week in take-home pay. [58] However, there are a number of factors that must be borne in mind. The plaintiff had been out of work for about fifteen months before the collision. She was 55 years of age and apparently it was difficult for her to find work despite her efforts. Also she had not fully recovered from the death of her grandmother. [59] I assess in these circumstances the chances of her earning income from employment in the period of 4.9 years since the collision at 40 per cent. [60] I assess past economic loss over the 4.9 years since the collision at a loss of $300 per week rounded down to $30,500. -- 13 of 15 -- 14 [61] I allow the plaintiff interest on past economic loss of $30,500 at the rate of 2.81 per cent per annum for 4.9 years which is a sum of $4,199.54. [62] I also allow the plaintiff loss of superannuation at 9 per cent which is the sum of $2,745.00. Future Economic Loss [63] Regarding future economic loss I consider at the age of 60 the plaintiff was less likely to be in employment than in the 4.9 years following the collision. I consider the chance that she would have been in employment at this time and up to the age of 65 as not very significant. On a global basis I allow the plaintiff $10,000 for future economic loss. [64] I also allow the plaintiff loss of superannuation at 9 per cent which is the sum of $900. Past Griffith v Kerkmeyer Damages [65] As I accept the evidence of the plaintiff and the plaintiff’s daughters, I find the plaintiff received services from her daughters that were necessary and the need for the services arose out of the personal injury suffered in the collision. I find gratuitous services of the same kind were not being provided for the plaintiff before the date of the collision. [66] I allow the plaintiff $13,848.00 for past Griffith v Kerkmeyer damages. [67] I allow interest on the sum of $13,848.00 at the rate of 2.81 per cent for 4.9 years which is a sum of $1,906.73. -- 14 of 15 -- 15 Future Griffith v Kerkmeyer Damages [68] I accept the plaintiff has a need for future services in the form of driving services. However, I consider if the plaintiff is allowed the sum of $3,060.00 for psychotherapy as recommended by Dr Kaplan, the chance increases that the plaintiff may recover although it may take some time and may not be fully successful. I allow the plaintiff a loss of $20 per week over 5 years discounted by 30 per cent for contingencies, which is rounded down to the sum of $3,200. Future Expenses [69] I allow the plaintiff $3,500 for future expenses based on Exhibit 33. Conclusion [70] The total damages are therefore $100,767.20 reduced by 20 per cent. I give judgment for the plaintiff against the second named defendant in the sum of $80,613.76. [71] I will hear the parties as to the question of costs. -- 15 of 15 --