Bartleet v Sadgrove & RACQ Insurance Ltd [2005] QDC 359

DISTRICT COURT OF QUEENSLAND CITATION: Bartleet v Sadgrove & Anor [2005] QDC 359 PARTIES: WILLIAM JOLYIAN BARTLEET Plaintiff v R H SADGROVE First Defendant and RACQ INSURANCE LIMITED Second Defendant FILE NO/S: D 464 of 2004 DIVISION: PROCEEDING: ORIGINATING COURT: Maroochydore DELIVERED ON: 3 November 2005 DELIVERED AT: HEARING DATE: JUDGE: Forno QC DCJ ORDER: CATCHWORDS: COUNSEL: Mr Grant-Taylor for the plaintiff; Mr. Howe for the defendants. SOLICITORS: [1] This is a claim for personal injury in which both liability and quantum are in issue, although there has been some agreement between the parties about the quantum of some segments of the damages claim. [2] Dealing firstly with liability, the only relevant eye-witnesses, if I may call them that, are the plaintiff himself and the first defendant, Sadgrove, and his wife, Mrs Sadgrove. The versions of events leading up to the collision of a racing bicycle -- 1 of 13 -- 2 ridden by the plaintiff and the Sadgroves' motorcar, in which Mr Sadgrove was the driver and Mrs Sadgrove the front seat passenger, differ markedly between the plaintiff on the one hand and the Sadgroves on the other. I have needed to have careful regard to their respective versions in determining reliability and consequently facts. [3] Mr Grant-Taylor for the plaintiff spent no time in address seeking to make submissions as to why I should disbelieve Mr and Mrs Sadgrove. He spent a little time seeking, in submission, to deflect criticism of the plaintiff’s evidence. In the end result he submitted it would not matter which version I accepted in terms of deciding liability because, on Mr Sadgrove’s own account, he engaged his directional blinkers too late, and so was guilty of negligence within the plaintiff’s pleadings, which should result, he submitted, in liability being determined in favour of the plaintiff. [4] I am sure it will come as no surprise to anybody concerned with the case that I conclude that Mr and Mrs Sadgrove presented as believable and convincing witnesses. They displayed none of the usually recognised indicia of dishonest or unreliable witnesses. Although of course they are partisan in the sense that Mr. Sadgrove is a defendant, it is plain that the insurance company, RACQ, is behind the proceedings. Each of the Sadgroves appeared to me to give evidence in straightforward fashion, with convincing demeanour. Their evidence rings true and what discrepancies there are between them in evidence before me, are only the sorts of discrepancies to be expected from honest witnesses as to peripheral matters and witnesses who have not colluded. They of course were emotionally involved with the upset of the collision but their primary concern was for the plaintiff who was injured at the time. They knew nothing of the dilemma that the plaintiff found -- 2 of 13 -- 3 himself in until they heard a scream from him immediately before striking the plaintiff’s vehicle. They were not argumentative in cross-examination and did not, in their evidence, present as advocates for any cause. [5] In contrast, the plaintiff made, on his own account, a decision in what might be described as the agony of the moment and his powers of observation concerning movement of the defendants’ vehicle and other general circumstances could be expected to be decreased. Those things include whether the directional indicator was operating on the defendants’ vehicle at all prior to the collision. Whilst the plaintiff gave his evidence in a way which might demonstrate he gave honest evidence, he was on occasions dogmatic where a concession might be expected and on occasions was argumentative (see for example at page 49, transcript lines 15-25). It appeared to me he had reconstructed much of the events. Part of that reconstruction, by the time the matter came to court, involved his description in evidence of the Sadgrove’s vehicle being driven forwards out of their driveway, whereas he said to the police officer at the scene (Sergeant Waller whose evidence I also accept as truthful and accurate): “I saw the car backing out of the drive – backwards or forwards, looking like he was going to continue down the hill. I was doing about 60 kilometres …” The transcript, I should observe, wrongly at page 48 records, “Backwards or forwards?” as if it were a question. That is clearly not correct as is demonstrated by what immediately went before. [6] By the time the police arrived he, although injured, had the opportunity to discover that there was a driveway into which the Sadgroves were driving and that was their own driveway, and at some unidentified time but before the trial the witness Griffin had been turned up by the plaintiff’s side. Griffin had seen, after the accident, the -- 3 of 13 -- 4 Sadgroves using their motor vehicle to trail their wheelie bins down their steep driveway, to place them at the kerb for their collection. [7] That evidence was objected to, however, it was indicated by defence counsel that the defendant would give evidence that in fact the Sadgroves had trailed their bin to the kerb with their vehicle on the day of the accident, but that they did not and never had, before or since, executed the manoeuvre attributed to them by the plaintiff of traversing the roadway and doing a U-turn to drive back up the driveway. I did not regard it as a particularly telling revelation in favour of the plaintiff that the defendants used their vehicle to trail their bins. [8] Mr Grant-Taylor submitted the police sergeant might have taken down the conversation with the plaintiff incorrectly, but I accept her evidence that she wrote down the precise words used by the plaintiff. Mr Grant-Taylor submitted that something similar had happened with Dr Day called by the plaintiff, who had reported the plaintiff told him the car was “reversing out”. When cross-examined about that by Mr Howe for the defendants he said that his note said “going out”, but he could not recollect which precisely was said. That is quite different from the sergeant’s evidence, and I may say with respect, quite different from what was submitted by Mr Grant-Taylor at page 180. [9] The only evidence of speed of the plaintiff’s bicycle is from the plaintiff himself. It is not precise. To the police officer he said he was doing “about 60 kilometres”. In the context this would appear to be a reference to the speed he was travelling at when he saw Mr Sadgrove’s vehicle drive out and was “looking like he was going to continue down the hill” and when the plaintiff chose to go around him to his right, Sadgrove did a turn across the road. He then put on the brakes. -- 4 of 13 -- 5 [10] In evidence-in-chief the sequence is somewhat different, particularly as to when he slowed down. It has to be remembered police officers no doubt seek a short explanation in circumstances like this and a contracted account may be misinterpreted. Even taking that into account in assessing the plaintiff’s evidence, as I have said, I do not regard the plaintiff’s evidence as reliable on any point such as this. [11] There is no other evidence of how the plaintiff proceeded and in particular what speed he was travelling at at relevant times. It is a matter of common sense that a racing bicycle is capable of reaching high speeds on a good bitumen road, which this was, and downhill, as were the circumstances in question here. Had the plaintiff been travelling close to the left-hand side of the carriageway, expecting to be able to clear the Sadgrove’s vehicle to its left, and suddenly discovered the obstructions to the left (concrete blocks) and made the choice in those circumstances to swing to the right, then that would place great difficulties in the way of holding that Sadgrove was negligent in not seeing the plaintiff. A lot would depend upon where the plaintiff was and what speed he was travelling at. I had not overlooked that the plaintiff was wearing, at the relevant time, multi-coloured clothing in an effort to provide some visibility. The very reason bicycle racers do that, I gather from the plaintiff’s evidence, is that they appreciate that being relatively difficult to see they need to do something to enhance that visibility. [12] Whether or not a court could hold the first defendant negligent in failing to see the plaintiff and his bicycle would very much depend upon where it was at relevant times and, of course, what speed it was travelling at. I am unable to determine those important things on the plaintiff’s evidence and of course there is no other evidence to assist me in that endeavour. -- 5 of 13 -- 6 [13] I find, in accordance with the Sadgroves’ evidence, that Mr Sadgrove drove his vehicle down his driveway on the day in question “trailing” a bin. He stopped his vehicle at the end of the drive and placed his bin against the kerb. He then drove, with Mrs Sadgrove as a passenger, left out of the driveway and preceded in a southerly direction along Hobbs Road for the purpose of looking at some road works. Their interest in this was explained in evidence. Having done that, they returned in the vehicle towards the driveway, again with Mr Sadgrove driving and Mrs Sadgrove the front seat passenger. On the way they did not see Mr or Mrs Bartleet. I accept, since this was Mrs Bartleet’s evidence (and I have no basis upon which to doubt her evidence), the plaintiff and she had a brief discussion standing with their respective bicycles near the intersection of Hobbs Road and Compass Court, some distance from the scene of the collision. [14] This is a fact I have not overlooked in assessing the Sadgroves’ evidence but, in the end result, in all of the circumstances, the fact they say they did not see the Bartleets does not cause me to have any doubt about the Sadgroves’ evidence on critical matters. Seeing cyclists standing, talking with their bicycles in that position would be unremarkable, I would have thought, in the whole of the circumstances, although, of course, it would have provided some indication that bicycles were about in the general area. [15] Having seen the road works, Mr Sadgrove drove his vehicle back towards his driveway, which is the only driveway existing directly off Hobbs Road in that vicinity. The roadway at that point consists of one lane in each direction, with double white lines leading up to and beyond the Sadgroves’ driveway, and level with the driveway there is a dotted white line to permit access and egress to that driveway. When Sadgrove had almost arrived level with the driveway he operated -- 6 of 13 -- 7 his right turn indicator and proceeded to turn towards the driveway, at about 5 kilometres per hour. These are all findings which I am prepared to make. He was concentrating on the road ahead, being conscious of the possibility of traffic that might come from the opposite direction, but checked for following traffic in his driving side, outside, rear-vision mirror but saw no following traffic. He saw no traffic and, in particular, did not see the plaintiff approach on his bicycle. However, the plaintiff or his cycle collided with the driver’s side door at approximately the position marked by Sadgrove on Exhibit 21. Without being able to make any finding based on any evidence I could accept about the movement and speed of the plaintiff’s bicycle, I am not in a position to decide whether Sadgrove was relevantly negligent and even if so, whether any negligence on his part caused or contributed in any way to the collision. It is for the plaintiff of course to establish both of these things in order to be successful in the action. Whether the plaintiff was in a position to be seen if Sadgrove had done all that was required of him, in this sense, is impossible to determine. [16] I need, however, to further discuss the submission by Mr Grant-Taylor, that even if I accept Mr Sadgrove’s evidence he, nevertheless, on his own account of things, breached his duty of care towards the plaintiff. This is based on a submission concerning failure to keep a proper lookout and a breach of the relevant traffic laws relating to indicating an intention to turn. [17] As I have referred to earlier, keeping in mind that Sadgrove’s responsibility in controlling his vehicle involved not only making reasonable observations of the roadway behind but also the road ahead and also taking account of relevant surrounding circumstances in order to enter his driveway with safety, I cannot conclude that Sadgrove was obliged, in carrying out his duty of care towards any -- 7 of 13 -- 8 following vehicle, to do more than what he did. He did not, upon looking in his rear vision mirror, see the plaintiff. Whether he ought to have seen him by looking in the rear vision mirror as he said he did, or whether he ought to have seen him by turning his head would depend, as I have already said, upon a number of matters relevant to the plaintiff’s particular speed at the time and his movements, including the position of the cycle of the roadway as the plaintiff approached, all of which I am unable to determine. [18] Mr Grant-Taylor submitted in part that had the defendant seen the cyclist he would have stayed where he was and allowed the cycle to pass. I do not agree that that is necessarily so. Much depends upon what I have discussed above. [19] Had, for example, the presence of the cycle been available to be observed for a fraction of a second, its position may have been such that a non-negligent driver might have chosen to speed up the turning an attempt to allow the cycle to pass behind it, but still not have avoided a collision. [20] On the question of the requirement to give warning of a turn to the right, the regulation requires a driver to give “sufficient warning”. What is sufficient depends on all of the circumstances. Mr Grant-Taylor relied upon the former regulation (at p 184 of the transcript) which he said gave some assistance as to what is required. For one thing, however, the fact that what is contained in the earlier regulations are not repeated in the current ones could well indicate the inappropriateness of stipulating any particular distance over which a turning signal ought to operate. In any case, the former regulation did no more than to “deem” a warning to be reasonable if it is given over a distance of 30 metres and the regulation specifically is stated not to limit the generality of the requirement that reasonable warning be given. I accept Mr Sadgrove’s evidence in cross-examination; he gave his signal for -- 8 of 13 -- 9 some short distance of about 20 feet prior to commencing his turn. However, he was, I accept, travelling slowly and, in all of the circumstances which he describes, which I accept, I could not regard his behaviour as amounting to civil negligence. [21] The plaintiff has not established to my satisfaction, on the balance of probabilities, that Sadgrove fell below the standard required in cases of this kind of a reasonably prudent motorist. The plaintiff’s case must therefore fail. GENERAL DAMAGES (Pain, suffering, loss of amenities and scarring) [22] It is agreed that the Civil Liability Act 2003 governs the proceedings. It is also common ground that item 138 of schedule 4 of the Civil Liability Regulation 2003 (serious knee injury) applies, the injury being, according to Dr Jamieson, a leg fracture extending into the knee joint, etc (see “example of injury” in item 138). There is no dispute that the injury ought to be accorded an Injury Scale Value (ISV) within the 11-24 range as provided in item 138 in the circumstances of the case. The only dispute as to where the injury should be placed in that scale. [23] In brief summary, the Plaintiff contends by reason of (1) current impairment of 12 per cent of the left lower limb; (2) probability of future surgery by way of total knee joint replacement procedure and corresponding increase in impairment; and (3) life threatening condition of pulmonary embolus suffered during immediate post accident interval, the top of the relevant range ought to be applied. [24] It is further submitted by the Plaintiff that $33,200 should be allowed under this heading. No interest can be awarded on that sum, the injury having been sustained in the collision which occurred on the very day referred to in the Act on and from which no interest is recoverable. -- 9 of 13 -- 10 [25] The $33,200 is calculated in submission by the Plaintiff under section 62 (e) of the Act by adding to the base amount of $26,000, $1800 dollars multiplied by four. [26] By contrast again in brief summary, the Defendants submit that the lowest ISV in item 138 ought to be applied giving an award of general damages of $12,400, that is $11000 base plus $1400. The Plaintiff, they submit (written submissions) has no ongoing impairment and he can undertake strenuous work activities and exercise. There is a risk of degeneration in the future. Comparison with item 137 is made. In oral submissions Mr Howe for the Defendant described by Dr Day’s evidence as confusing and submitted that I should prefer other medical evidence that the leg is now normal. [27] It is true to say that the Plaintiff appears to be functioning well at the moment, cycling and working as the Plaintiff properly conceded in evidence. [28] However, I must say that I did not find Dr Day’s evidence confusing. In contradicting other medical evidence Dr Day (orthopaedic surgeon) quantified a lower limb impairment of 12 per cent in the circumstances where the Plaintiff has suffered a five to nine degree angulated displaced fracture of the tibial plateau. He explained his application of AMA5. He clarified in oral evidence (and I have concluded that I should accept his evidence in full) that what he was reporting as a five degree angulation was angulation beyond the normal, whereas other medical evidence was based on the assumption that Dr Day wrongly regarded that which is a healthy male angulation of five per cent as indicating abnormality. One should be extremely surprised if an orthopaedic surgeon of Dr Day’s standing made such a basic error. The simple and acceptable explanation which rings true is the one Dr Day gave. Also he clarified that although post operatively the alignment of the lower leg is correct in this case due to good fixation process, what has to be looked -- 10 of 13 -- 11 at in order to reach an opinion about the degree of damage to the articulate cartilage which occurred in the accident is the degree of abnormal angulation suffered pre operatively. That is, he said five to nine per cent. That demonstrates in the Doctor’s opinion that the degree of trauma was mild to moderate which would result in such a degree of damage to the articulate cartilage as would result in a 50/50 chance of the onset of symptoms in 15 years post accident that is in 2018. [29] I accept Dr Day’s evidence that the level of fitness does not come into the equation. Dr Day’s evidence, understood in the way I understand it is not contradicted by any other medical evidence. Any contradiction really proceeds on a false premise. [30] Whether or not a person would have a knee replacement operation depends upon the degree of pain and interference with everyday activities, including work that the subject is prepared to bear. It seems to me that it is not to the point to say, as was submitted by the defence, that the Plaintiff did not say he would have the operation. That would depend very much on how he felt about what was happening at the time which is impossible to predict. [31] This case requires the application of the principles under which a Plaintiff is to be compensated for the degree of likelihood of something happening in the future. [32] There is “only a possibility” that the onset of such symptoms could occur prior to “normal retiring age” (see page 126 of the transcript). [33] Accepting as I do Dr Day’s evidence I have concluded that an ISV higher than the 11 submitted by the Defendant is appropriate to apply in this case. [34] I do not agree however, that 24 is appropriate. A part of what is relied upon by Plaintiff’s Counsel as being “not insignificant” is the fact that the Plaintiff -- 11 of 13 -- 12 developed a pulmonary embolus which can be fatal. We have the benefit of hindsight here and fortunately for the Plaintiff that was successfully resolved. It deserves some consideration in the context of impact on the injured person in the sense that it put him at further risk than other wise and I do not read the Act as requiring impact in the sense necessarily of appreciation on the part of the injured person resulting in anxiety or increased anxiety although insight is something else which is considered. It is not of great significance in this case. [35] Having said that, my overall view is that an assessment of the ISV at 17 in this case is appropriate. It seems to me in coming to that conclusion that I should keep in mind that some margin has to left within this item to accommodate much worse cases, some of which Dr. Day described. I have not overlooked in doing that that the scale can be exceeded in appropriate cases, but do not agree with plaintiff counsel’s submission that it may have permissible to exceed the scale in this case. I therefore assess general damages at $20,800 (see section 62 (c)). FUTURE ECONOMIC LOSS Section 55 of the Act is against the Plaintiff under this heading. I cannot be satisfied that the Plaintiff will suffer loss in terms of the Malic v Hutton Test. Dr Day reported (exhibit 17) “I believe Mr Bartlett would be capable of working as a parcel contractor for Australia Post with his left limb condition in the future. Should he require consideration of surgery before retiring age which I believe is unlikely then I feel he would take about 3 months off work.” [36] Despite the Plaintiff’s mere stated anticipation that he will work until 70, I consider it appropriate to regard a 65 as the retiring age in this case. Any operation (and perhaps more relevantly any symptoms of pain etc indicating an operation, I could -- 12 of 13 -- 13 not, in the circumstances, be in any way satisfied would occur before age 65. Therefore I make no allowance for future economic loss. FUTURE CARE Whilst this is not conceded there was no opposing argument that $3975 should be allowed for future total knee joint replacement. It is not appropriate in my view to quibble with Mr Grant Taylor’s calculations since they appear to be correct. He has allowed in particular a 50 per cent discount to reflect that surgery may not be necessary. I therefore assess damages at a total of $33,258.05, being $1068.05 (specials - agreed); $7000 (past economic loss - agreed); $415 (interest on past economic loss); $20,800 (general damages); $3975 (future care). I need only add for completeness that the claim for past Griffiths v Kerkemeyer was abandoned and there was no claim for future GvK. [37] I shall hear the parties as to costs. If the parties agree that something should be corrected in the judgment or reasons, I am prepared to do that at any convenient time. -- 13 of 13 --