Adams v Anstis & Anor [2005] QDC 293

DISTRICT COURT OF QUEENSLAND CITATION: Adams v Anstis & Anor [2005] QDC 293 PARTIES: VICKI-GAYE ADAMS (NEE SMITH) (Plaintiff) v JAMES CHARLES ANSTIS (First Defendant) & QUEENSLAND FIRE SERVICE (BN 340333) (Second Defendant) FILE NO/S: 3277 of 1999 DIVISION: Civil PROCEEDING: Trial ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 7 th October 2005 DELIVERED AT: Brisbane HEARING DATE: 22 nd and 30 th September 2005, JUDGE: FORDE DCJ ORDER: 1. It is ordered that the first and second defendant do pay to the plaintiff the sum of $10,362.30. 2. It is further ordered that the first and second defendants do pay to the plaintiff her costs of the action including reserved costs, if any, to be assessed on scale “F” of the Magistrates Court scale. CATCHWORDS: MOTOR VEHICLE ACCIDENT – QUANTUM – LIABILITY - EMERGENCY VEHICLE –– Jones v Dunkel– Whether costs on District Court or Magistrate Court scale COUNSEL: Mr R Oliver for the Plaintiff Mr L Jurth for the First and Second Defendants SOLICITORS: Baker Johnson Solicitors Deacons Lawyers -- 1 of 11 -- 2 Introduction [1] This matter was heard on 22 September in relation to both quantum and liability. It was adjourned until today to hear more evidence from medical witnesses. With the acquiescence of both sides at the bar table, judgment was delivered on 22 September in relation to liability. The plaintiff was held to be 70% liable for the accident. It was indicated on that occasion that additional reasons would be given. At that point the parties were hopeful that quantum would be resolved once the liability issue was determined. Jones v Dunkel issue [2] The defence contended that the plaintiff had failed to call her daughter, Cassandra, who was a passenger in her vehicle at the material time and therefore it should be inferred that any evidence from her daughter would not assist the plaintiff. The plaintiff gave evidence that she did not speak to her daughter because of problems which the plaintiff had with her daughter’s partner. In fact, the plaintiff said that in relation to another court case, her daughter refused to attend. This by itself would probably have been sufficient to avoid any adverse inference being drawn against the plaintiff. However, the plaintiff tendered a statement which showed that her daughter in fact supported her version. It was admitted not as to the truth but rather to show that an adverse inference should not be drawn. In any event, given the findings made on liability this issue is of less significance. Emergency vehicle [3] The defendants contend that as the fire truck was an emergency vehicle the plaintiff should have given way to it. There is a simple answer to this. The truck from behind looks like a water tanker. Approaching it at 100kph would make it difficult to determine that it was a fire truck on its way to a fire. The plaintiff and her -- 2 of 11 -- 3 witness denied seeing the smoke which was further down the highway past the accident scene. There was therefore nothing to warn them on their version that this vehicle was on its way to a fire as an emergency vehicle. This issue was not directly pleaded in any event. Regulation 37 of the Traffic Regulations required the plaintiff to give way to an emergency vehicle. In any event, the fire truck did not have a siren or flashing warning lights on. However, as evidence was led and counsel for the defence addressed on the issue, it was appropriate to deal with the point. Credibility issues [4] At the outset of the addresses, it was conceded by counsel for the plaintiff that the evidence of the defence witnesses was the more credible version. It became a question, on the defence case, whether there should be any apportionment in favour of the plaintiff. The failure of the defendant, Mr. Anstis, to look again in his rear vision before turning right was found to be negligent and so a 30% contribution was found. Given the position taken by the plaintiff’s counsel during addresses, detailed findings on credit were not necessary. It was obvious during the cross examination of the plaintiff that she was uncertain about the events and that her evidence in that respect was unreliable. There were other issues raised in relation to her evidence which led to finding that her evidence as to the manner in which the accident occurred was unreliable. These issues include asserting that the truck was parked on the side of the road before it pulled across her path, failing to see a vehicle passing to the left of the truck before the collision, wrongly assuming that the truck was proceeding down the highway, and failing to observe its indicator. The evidence of Ms. Fagioli, a friend of the plaintiff, was in a similar category. The evidence by Mr. Anstis and his witnesses was clear and concise and reliable. -- 3 of 11 -- 4 Liability of Second Defendant [5] It is admitted in the defence 1 that the second defendant was vicariously liable for the acts and omissions of the first defendant, Mr. Anstis whilst driving the said fire truck in the normal course of his duties. Quantum [6] The plaintiff was born on the 16 October 1955. As a result of the accident, she suffered the following injuries: ‘a) severe soft tissue injury to the cervical spine; b) severe soft tissue injury to the cervico-scapular region and supporting muscular; c) severe soft tissue injury to the upper thoracic cage on the right hand side; d) severe soft tissue injury to the left breast with persistent haematomas requiring ongoing treatment; e) severe soft tissue injury to the abdomen with persistent haematomas; f) severe soft tissue injury to the right knee; g) severe soft tissue injury to the right foot and damage to the metacarpals of the right foot; h) occipital headaches; i) shock; j) depression.’ 2 [7] In the amended defence3 , the defence admit that the plaintiff sustained: (i) A compound fracture of the proximal phalanx of the right fourth (4th ) toe; and (ii) Musculoligamentous strain of the neck.” [8] The claim for economic loss was abandoned. 4 There was a failure to give discovery of any tax returns, group certificates or other documentary evidence relating to past employment. 1 Filed on 7 September 2005 para. 3 2 Statement of claim filed 29 July 2005. 3 Filed 7 September 2005 4 Transcript p.39.10. -- 4 of 11 -- 5 Evidence of the Plaintiff concerning her injuries [9] In her evidence, the plaintiff stated that she had some superficial cuts, a broken toe and the back of her neck was swollen. She was bruised across her breast and stomach. She required assistance doing her cooking and cleaning and was not fully mobile for some three months. She gave evidence that she required assistance for some six hours per day for three months. In 1997, she underwent training as a security guard. Whilst working in that occupation, she had problems standing for any long period. She suffered pain in her ankles and heels. The latter do no seem to be related to the accident. [10] It seems that the plaintiff had a knee problem in 1993 or 1994. At the time of the subject accident in 1996, she was managing her knee problem. The plaintiff stated that the knee “came out of the joint more” as a result of the accident.5 She had her foot on the brake when the accident occurred and as a result of the force from the accident she “felt my toes break and my –I felt like my hip went up – I don’t know, like, my foot’s just got shorter.”6 It also jarred her neck. I accept that the accident aggravated her knee condition and caused some ligamentous injury to her neck. The plaintiff did not finish her security work until 2002. The plaintiff stated that her symptoms to her knee have got worse. She tried some security work at the Nimbin Hotel but found it too difficult.7 She has been on anti-inflammatory tablets and anti-depressant medication for some years. She also goes to the chiropractor on a weekly basis. Prior to the accident she was able to manage with her back pain.8 5 Transcript p.15.40. 6 Transcript p.15.54. 7 Transcript p.16.20. 8 Transcript p.17.48. -- 5 of 11 -- 6 [11] In relation to her mental state, there have been other events in her life which may have contributed to her condition. Her son died in 1995. Her present husband is suffering from cancer specifically brain tumours. The pain from the accident has added to the symptoms of her mental condition. [12] In cross examination, the plaintiff was challenged in relation to her consumption of medication, the time during which she was assisted at home immediately after the accident and whether her symptoms are all related to the accident. The plaintiff seemed to be a stoic person. She was willing to make concessions on occasions. What is clear is that she suffered a significant injury to her foot, leg/hip and neck region. As a result both in her day to day living and when she was working she has suffered pain and inconvenience. Generally, I accept her description of the symptoms as they relate to the accident. She was much more lucid and reliable when talking about her ongoing symptoms than the facts surrounding the accident which occurred some nine years ago. Medical evidence [13] The plaintiff called evidence from Dr. Wallace. She complained to him in July 2005 of: a. Right side posterior cervical spinal pain radiating into the right scapula. b. Low back pain with some radiation into the right lower limb. c. Pain, swelling and instability in the right knee with locking and unlocking. d. Right inguinal pain with an associated limp on the right side.9 [14] It seems that the back pain and knee pain have been the reason why the plaintiff is unable to work. She walks with a limp and has right knee instability. She has -- 6 of 11 -- 7 difficult with her day to day activities including shopping, driving a car for lengthy periods and housework. On examination there was tenderness over the lumbosacral junction and the cervical spine but she had a full range of movement in those areas as well as her right hip. There was some tenderness at the medial joint line of the right knee and a block to full extension of 10%. Dr. Wallace seemed to accept that these symptoms were related to the injuries received in the accident.10 [15] Dr. Wallace was not told of the pre-existing condition to the knee by the plaintiff. This may be because she suffered no symptoms pre-accident. It did not change his view to any great extent about the loss of use. He attributed the majority of his assessment to the accident.11 He assessed the loss of function as follows 12 : a. Cervical spine: 3% impairment of the whole person. b. Lumbar spine: 5% impairment of the whole person c. Right knee: 7% impairment of the whole person. d. Right hip: 2% impairment of the whole person. [16] The defence relied upon the evidence of Dr. Boys. He examined the plaintiff in July 2005. He stated that there were no residual specific complaints by her referable to the neck. There was a cracking sensation on occasions. The plaintiff also described “odd catching on occasion involving her right scapular”.13 He noted the cervical spine to be non-tender and movement to be full and free. He stated that any musculoligamentous or soft tissue injury have long resolved. There was no assessable impairment to the right foot. He stated that the accident has not given rise to any domestic or work incapacity.14 9 Exhibit 2 p.2-3. 10 Transcript p.128.53. 11 Transcript p.119.60-120.2. 12 Exhibit 2 p.6. 13 Exhibit 8 p.3. 14 Exhibit 8 p.4. -- 7 of 11 -- 8 [17] In his later report15 , Dr. Boys makes reference to the general practitioner’s report from 1993. Apart from the problems to the right knee, there was reference to lower back pain. In cross examination, Dr. Boys accepted that if the plaintiff was asymptomatic prior to the accident, and if one accepts her statements about the symptoms, then she may have aggravated the pre-existing knee condition. I accept that evidence. The history given by the plaintiff, which I accept, is consistent with an aggravation of her pre-existing knee condition as diagnosed in 1993. Dr. Boys examined her only in relation to her neck and foot. He found no ongoing loss of function in those respects.16 [18] In cross-examination, Dr. Wallace accepted that her inguinal pain was due to pain in the hip rather than the back. He rejected the suggestion that the pain being suffered by the plaintiff was due to her being overweight.17 Being overweight may delay her recovery. Assessment Pain and suffering [19] Generally, I accept the evidence of the plaintiff in relation to her ongoing symptoms and that they relate back to the accident. Dr. Wallace accepted the causal connection in his assessment having been made aware of the mechanics of the accident. I accept his opinion. In the nine years since the accident, the plaintiff has attempted to get on with her life. She has taken medication to allow herself to work as a security officer. Her pain and suffering whilst working with her disabilities finally became too difficult to cope with. She has not sat around doing nothing. 15 Exhibit 9 p.1. 16 Transcript p.117.50. 17 Transcript p.128.5 -- 8 of 11 -- 9 She stopped work in 2002. As time passed on her problems got worse. She admitted that this was also part of the aging process. It was suggested that she has exaggerated her symptoms. I find to the contrary. She has been stoic in her approach to her work and trying to get on with her life. The depression from which she suffers has probably been cause to a large extent by matters other than the accident. However, pain can cause symptoms consistent with anxiety or depression. The accident may have contributed to her depressive condition in a limited way. I assess general damages at $25,000. I allow interest on the sum of $15,000.00 at 2% for five years. This would produce a figure of $1500.00. Griffith v Kerkemeyer [20] In the most recent Statement of Loss and Damage 18 , the number of hours claimed per day was five hours assistance from her husband for four months and two hours a week from a neighbour for two years. The defence attacked the inconsistency in the original Statement of Loss and Damage.19 The plaintiff signed the latter only. The submission from the defence is that the plaintiff should be allowed only two hours per day for three months at the rate of $12.00 per hour. If one allows 13 weeks by two hours per day by $12.00 a figure of $2184.00 is assessed. Initially, a larger number of hours per day would have been necessary to cook meals, tend to the house work and garden, do the shopping and assist the plaintiff with her bathing etc. The plaintiff claims the sum of $3000.00. In my view the sum of $3,000.00 is more than reasonable. [21] Interest is payable on that sum for a period of say five years at 2% viz. $300.00. 18 Exhibit 5. -- 9 of 11 -- 10 Special Damages Past medication [22] This figure is not disputed at $2,210.00.20 Chiropractic and other [23] This figure is not disputed at $783.00. Interest on Special Damages [24] The figure of $748.00 is accepted in relation to interest. Future medication [25] The defence concede that half of the sum claimed would be acceptable. The amount claimed is $2,000.00. However, given the pre-existing knee condition, the other factors causative of the plaintiff’s depression and the onset of age, the sum of $1,000.00 seems fair and reasonable. Summary of Damages Pain and suffering $25,000.00 Interest on pain and suffering 1,500.00 Griffiths v Kerkemeyer 3,000.00 Interest on Griffiths v Kerkemeyer 300.00 Past medication 2,210.00 Chiropractic and other 783.00 Interest on specials 748.00 19 Exhibit 4 and Exhibit 5. -- 10 of 11 -- 11 Future medication 1,000.00 -------------- $34,541 .00 -------------- Costs [26] After apportionment, the amount to be awarded to the plaintiff will be $10,362.30. It has been argued by the defence that the matter ought to have been heard in the Magistrates Court. There is some merit in this. However, the legal representatives for the plaintiff did not pursue the economic loss component. Whether that be due to their lack of diligence or the plaintiff’s failure to provide instructions is now known. It may be relevant in relation to the costs charged on a solicitor client basis. That is another matter. In relation to the costs of this action, the costs should be limited to an assessment on Scale “F” of the Magistrates Court scale as referred to in the submissions of counsel. This was not a complex matter. Orders 1. It is ordered that the first and second defendant do pay to the plaintiff the sum of $10,362.30. 2. It is further ordered that the first and second defendants do pay to the plaintiff her costs of the action including reserved costs, if any, to be assessed on scale “F” of the Magistrates Court scale. 20 Transcript p.129.50 -- 11 of 11 --