Attard v Hore & Anor [2003] QSC 89

SUPREME COURT OF QUEENSLAND CITATION: Attard v Hore & Anor [2003] QSC 089 PARTIES: LORRETTA KAY ATTARD (Plaintiff) v BENJAMIN PETER HORE (First Defendant) and QBE INSURANCE LIMITED (Second Defendant) FILE NO/S: S.30 of 2002 DIVISION: Trial PROCEEDING: Application for Damages ORIGINATING COURT: Supreme Court at Mackay DELIVERED ON: 2 April 2003 DELIVERED AT: Townsville HEARING DATE: 25 and 26 March 2003 JUDGES: Cullinane J ORDER: Judgment for the Plaintiff against the Second Defendant in the sum of $89,622.38. CATCHWORDS: TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – APPORTIONMENT OF RESPONSIBILITY AND DAMAGES – where collision occurred at uncontrolled intersection – where Plaintiff failed to give right of way to First Defendant’s car – where Plaintiff suffered injury – whether Defendants are liable to Plaintiff in damages Sibley v Kais (1968) 118 CLR 424, applied COUNSEL: G Crow for the Plaintiff M Liddy for the Defendants SOLICITORS: Macrossan and Amiet for the Plaintiff McInnes Wilson Lawyers for the Defendants -- 1 of 12 -- 2 [1] The plaintiff was born on 8.6.68. She sustained injuries in a motor vehicle accident which occurred at about 5.30 p.m. on 4.8.98 at the intersection of Byron and Park Streets, Mackay. [2] The plaintiff was driving her Holden Kingswood sedan in a southerly direction in Byron Street, whilst the defendant was driving a Toyota Landcruiser in an easterly direction along Park Street. There are a number of photos which show the intersection and the approach of each driver, the view which each driver would have had of a vehicle approaching the intersection and the view beyond the intersection for each driver. [3] There were no specific controls in respect of right of way at the intersection. The plaintiff was on the defendant’s left and thus was under an obligation to yield right of way. [4] According to the plaintiff, she approached the intersection at about 40 to 45 kilometres per hour, slowing down to about 30 to 35 kilometres per hour as she reached the intersection. She says that when she was about two car lengths back from the intersection she looked to her right and saw the defendant’s vehicle coming from Moore Street (a street which is parallel with Byron Street to the west) as it turned into Park Street. [5] She says that she next looked and saw the vehicle when it was at about the boundary of what she describes as the third and fourth house back from the intersection. The third house was referred to as a high set house. [6] The plaintiff says that as she entered onto the intersection she kept an eye on the approaching vehicle and that it accelerated towards her. When she saw that a collision was about to occur she stopped her vehicle and so it was stationary when the collision occurred. According to her, the Landcruiser reached a speed of 65 to 75 kilometres per hour as it approached the intersection. [7] Her then partner, Mr Ashford, was a passenger in the car. He subsequently took some measurements and these appear on Exhibit 5(a). He was called to give evidence. [8] According to his measurements the plaintiff travelled some 18 metres from the time she entered the intersection to when she came to a stop. The position at which she stopped the vehicle was approximately 16 metres to the east of the alignment of Byron Street. There are also some measurements showing the widths of the housing blocks. It is some 40 metres to the centre of the third block from the closest alignment of Byron Street. [9] Mr Ashford gave evidence which was similar to that of the plaintiff. He identified the third house as being the point at which he saw the defendant commencing to accelerate towards them. He saw the Landcruiser at the third house back from the intersection “picking up speed”. At that time the plaintiff’s vehicle had entered onto the intersection. When he next looked, -- 2 of 12 -- 3 the plaintiff’s vehicle was “half-way through the intersection” and the Landcruiser about five metres away from her vehicle. [10] Another occupant of the vehicle, Wayne Attard, a nephew of the plaintiff, gave evidence of seeing the Landcruiser turn into Park Street. He says that it was travelling at about 40 kilometres per hour when he heard its motor “revving” and the gears changing. The vehicle was about three or four car lengths away when it accelerated and at this time the plaintiff’s vehicle was on the intersection. According to this witness the vehicle reached some 60 to 65 kilometres per hour. [11] The defendant gave evidence. He was at the time of the accident a 16 year old who was unlicensed. He had travelled with his mother and a friend, one Jonathan Whitestyles, to a shopping centre nearby. His mother had told him to park the vehicle and he said that because the car park was full he was travelling around the block to bring the vehicle back to a position where it could be parked in another part of the car park. [12] Mr Whitestyles’ evidence was that the vehicle stopped in Moore Street before turning into Park Street and that the defendant drove down Park Street at about 50 to 55 kilometres an hour. He says the vehicle was driven normally as it approached the intersection. He saw the plaintiff’s vehicle when it was about 30 metres or thereabouts away and at about a similar distance from the intersection as was the Landcruiser. He had not previously been asked about the incident until shortly before giving evidence. [13] The defendant was a somewhat confused and inarticulate young man. He says that he saw the plaintiff’s vehicle when it was about the same distance from the intersection as his own, although he had also said that his vehicle was somewhat closer to the intersection than the plaintiff’s when he first saw it. He said that he was travelling at a speed of no greater than 50 kilometres per hour although in an earlier statement he said he had been travelling at about 50 to 55 kilometres per hour. His evidence was that he had changed into third gear as he drove along Park Street after turning into that street. [14] It is clear from his evidence that having seen the plaintiff’s vehicle he proceeded upon the basis that right of way would be yielded to him and that he did not take any effective steps to slow his vehicle against the risk that this might not occur until a collision was imminent. [15] Mr Taylor, a solicitor, was travelling southwards along Byron Street on his way home from work. His attention was drawn to the plaintiff’s vehicle, at that time stationary on the intersection and he then saw the Landcruiser come into view and the collision occur. He was not in any position to estimate the speed of the Landcruiser. The defendant denied that the plaintiff’s vehicle had stopped, but I am satisfied from Mr Taylor’s evidence that it did. -- 3 of 12 -- 4 [16] It is in my view not possible to accept the evidence of the plaintiff and her witnesses that the defendant’s vehicle was as far from the intersection as they say when her vehicle entered upon the intersection. [17] Whilst it may be axiomatic that one cannot approach a resolution of these issues on a purely mathematical basis, I am satisfied that the defendant’s vehicle must have been closer than the point at which the plaintiff and Mr Ashford and Mr Attard placed it when she entered upon the intersection. [18] The plaintiff had the obligation to yield right of way and, it would seem, failed to keep a proper look out and thus fully appreciate the danger posed to her by the approaching vehicle. [19] On the other hand I have little difficulty in accepting that the defendant’s vehicle was travelling at a higher speed than that of the plaintiff’s. He had said in a statement that he was travelling at 50 to 55 kilometres per hour and I think it likely, given Mr Attard’s evidence, that he had reached at least the speed limit as he approached the intersection. [20] This is not a case in which the plaintiff appeared to be slowing down or stopping so as to yield right of way. [21] The principles which govern the duties of drivers as they approach an intersection were established in the judgment of the High Court in Sibley v Kais (1968) 118 CLR 424 and in particular the passage which appears at p.427: “The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to reasonable care is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.” [22] Both of the parties here in my view failed to discharge that duty. The plaintiff’s failure was constituted on my assessment of the evidence by a failure to keep a proper look out and, associated with that, failure to keep her vehicle in hand so as to give right of way when, as ought to have been the case, she appreciated that the vehicles would collide if she continued. The defendant on the other hand, having seen the plaintiff, simply proceeded on the assumption that his vehicle (a very substantial one) would have right of way yielded to it. He made no attempt to slow his vehicle as he approached the intersection having reached a speed of about the order that I have already mentioned as he put the vehicle into a higher gear whilst driving along Park Street. [23] I apportion liability as to 25 per cent to the defendant and 75 per cent to the plaintiff. -- 4 of 12 -- 5 [24] The plaintiff completed a year 10 education in 1983. She had worked in the last few years of her schooling. [25] After leaving school she worked for approximately 12 months in a book exchange and then for a further similar period as a shop assistant. This work had some heavy aspects to it. She married in 1986 and subsequently separated in 1991. She left work to look after a child of a previous relationship of her husband. [26] When that child commenced pre-school she commenced to look for work. She says that she had an interest in working as a carer and pursued employment in that field. She worked at a nursing home at North Mackay in a voluntary position for a period and then obtained employment for about six months at the same place. Subsequently she obtained a position as a private carer for an aged and disabled person who was in a wheelchair. After some three or four months of that work she obtained a similar position for another person where she worked for approximately four months. She left to commence work as a day-care mother, working from home. This work required her to complete a first aid course. She was required in the course of this employment to look after a number of children during the day and some of an evening. She performed this work for about 8 months. [27] She then took a position at a video store as a shop assistant, having been offered the employment by the mother of one of the children whom she cared for. She worked in this position for approximately 18 months. The activities involved appear in paragraph 8 of her statement which is Exhibit 1. [28] She and her husband separated in 1991 and because she wanted to avoid contact with him she moved to Muswellbrook in New South Wales where her sister lived. She there commenced a relationship with Mr Ashford to whom I have referred. The plaintiff enrolled in a course of training as a carer for the aged as she wished to pursue employment in that field. She undertook that course at a tertiary institute at Gosford and after that obtained a certificate as a carer for the aged. [29] The plaintiff at about this time fell pregnant and gave birth to a child on 1.12.93. Sadly, however, the child survived only one day. [30] She obtained employment at a nursing home in Gosford having previously applied for a position there. She worked initially on a casual basis for three months and then on a permanent basis until approximately one month prior to the birth of her child, Jay, on 30.12.94. She had commenced in this employment at the beginning of 1994. [31] She returned after the birth of her child but decided after a couple of months to stay home so that she could look after the child. [32] The plaintiff had suffered two miscarriages during the course of her marriage. -- 5 of 12 -- 6 [33] She and Mr Ashford moved back to Mackay in late 1995 at which time the plaintiff was pregnant with her second child who was born on 12.5.96. Mr Ashford had been employed as a truck driver but had lost his licence and was unable to work. [34] Between 1995 and early 1998 the plaintiff had not worked. However in early 1998 the two children commenced to attend a kindergarten and the plaintiff says she then took some steps to return to the workforce, making applications to nursing homes in the Mackay district and also supermarkets and other places seeking work. [35] It was the plaintiff’s evidence that she did not receive any response to her applications to the nursing homes and that the other places to which she applied had no positions. [36] There was some evidence from one Vicki Ann McDonald who was a co- ordinator/teacher at the TAFE College in Mackay and who was responsible for the provision of Carer for the Aged training courses. Her evidence was that there is a demand for carers and that if application was made to the aged nursing homes in the district or employers in the sector, the names of the applicants would be kept and in due course such a person would be approached. [37] Some attack was made upon the credibility of the plaintiff about her evidence in this regard, it being suggested that she was not motivated to seek work and that her evidence of making the applications should not be accepted. [38] My impression generally of the plaintiff was a positive one. I thought that her work history indicated a readiness to work and that she would have been likely to have re-entered the workforce when the circumstances of her family, particularly the age of the children, would have permitted. Whilst the lack of response is at least somewhat curious given Ms McDonald’s evidence, I accept the plaintiff’s evidence generally that she was seeking work at the time that the accident occurred. [39] Since the accident, the only employment that she has undertaken is a period when she obtained employment at a produce business in Mackay. She approached the proprietor and asked for a position. The employer was aware of the problems which the plaintiff suffered from and to which I will shortly refer. The work involved some elements of lifting and extended periods of standing. She worked for a couple of hours a day for three days a week but at the end of the third week found that the pain was too great and ceased working. [40] The symptoms which the plaintiff suffered from immediately following the accident appear from paragraph 20 in Exhibit 1. Initially her symptoms were of pain and discomfort in the neck and chest as well as a loss of feeling in the right leg. She was taken to the Mackay Base Hospital. She had developed a severe headache and was experiencing pain in the neck and shoulders and continued to experience a loss of feeling and tingling in -- 6 of 12 -- 7 her right leg. An x-ray was taken of the cervical spine. She was given an injection and went home. The following day she attended upon her general practitioner. She describes herself as being stiff and sore all over. She had, by the time she consulted her general practitioner, Dr McIntosh, pain in the lower back as well. [41] Her complaints and the progress of them appear in the reports of Dr McIntosh who she saw on a large number of occasions. I heard evidence from two orthopaedic surgeons on behalf of the plaintiff, Dr White and Dr Cook, and the reports of an orthopaedic surgeon, Dr Fraser, were tendered by the defendant. There is a dispute between the orthopaedic surgeons. [42] Dr Fraser’s view is that the complaints which the plaintiff made when he saw her exceeded the injuries suffered in the radiological findings. The plaintiff in his view had suffered some soft tissue injury in the cervical and lumbar spine and she had been left with a permanent partial disability of two and a half percent of the body as a result of the accident. He thought that she should avoid heavy manual work or work requiring the prolonged maintenance of a single posture, but that otherwise she was capable of employment. [43] Dr Cook and Dr White both thought that the plaintiff had been left with significant disabilities of the lumbar and the cervical spine. [44] An early x-ray of the lumbar spine which was taken in March 1999 was normal. [45] In May 2000 an MRI of the cervical and lumbar spines was performed. The cervical spine was normal but there was a broad based disc bulge at L45 and some minor desiccation of the discs at L45 and L5S1. [46] Both Dr White and Dr Cook are of the view that the abnormalities shown in the lumbar spine are the consequence of the motor vehicle accident and that the plaintiff has generalised soft tissue damage to the upper spine. [47] Her disability of the cervical spine is assessed by Dr White as being some five percent and of the lumbar spine some ten percent. In each case this is a disability expressed in terms of a whole of the person disability. [48] Dr Cook thought that of the ten percent disability, eight percent should be ascribed to the motor vehicle accident. It is plain however from his evidence that, given the plaintiff’s age, any degree of pre-existing degenerative change would have been minor. [49] Both Dr Cook and Dr White are of the view that the plaintiff should not engage in work which involves lifting or twisting or turning, bending or similar activities or which would require her to maintain her head and neck in a fixed position. Dr Cook thought she could perform work of a light or supervisory nature and this, it appears to me, is also consistent with the view of Dr White. -- 7 of 12 -- 8 [50] The appearance of the MRI is, according to each of the two doctors, consistent with the plaintiff having sustained damage in the accident. [51] Given the persistence of the complaints throughout and the MRI results, I accept the evidence of Dr White and Dr Cook as to the plaintiff’s present disabilities and their relationship to the accident. [52] There is also a dispute between psychiatric witnesses. Dr James gave evidence for the plaintiff and Dr Byth for the defendant. [53] Dr Byth is of the view that the plaintiff has an adjustment disorder which is contributed to by a number of factors including personal stressors in the plaintiff’s life as well as the accident. [54] When he saw her in July 2001 there had been some improvement in her condition and he thought that although she had exhibited some depressive symptoms in the past, they were not likely to relapse or to need treatment in the future. [55] On the other hand, Dr James is of the view that the plaintiff suffers a much more serious psychiatric condition and that it is attributable to the accident. In his first report he said that she had a chronic adjustment disorder with depressed mood having earlier suffered from a major depressive disorder which had responded well to treatment. However when he subsequently saw her she had relapsed and he thought that the major depressive disorder had reappeared. [56] Dr James did not accept the proposition that other factors were the primary causes or even significant causes of her present psychiatric condition. [57] In his view the pain and disability she suffers from as a result of the accident and the limitation upon her employability are the causes of her condition. [58] The plaintiff had, as I have already said, some substantial personal setbacks prior to this accident but it appears that she had overcome them without exhibiting any signs of depression. There is no evidence of her having exhibited such signs. On the other hand Dr McIntosh, her general practitioner, gave evidence that he saw her on many occasions in relation to her complaints of pain in the cervical and lumbar spines and that he observed the onset of what he considered to be depression. He prescribed drugs to her which were primarily for the alleviation of pain, but had the secondary benefit of assisting with her depressive symptoms. There was some cross-examination of him as to whether his records were consistent with his observation of depression or depressive symptoms as early as he suggested but I accept what he has said about this. I think his evidence of the onset of these symptoms and their relationship to the ongoing symptoms of pain and discomfort in the spine are more consistent with the view expressed by Dr James than that of Dr Byth. -- 8 of 12 -- 9 [59] I accept the evidence of Dr James and it is, as I have said, also supported by what Dr McIntosh has said. [60] The plaintiff therefore suffers significant physical and psychiatric consequences of the accident. Some improvement in her psychiatric problems might be expected with treatment of the kind Dr James refers to. This treatment is mentioned in the notes of the conference with Dr James which form part of Exhibit 2. He has in mind intensive psychotherapy and the use of anti-depressants which may result in her being able to cease those anti-depressants after a year, although he thinks that the odds are that it is likely that she will continue to require both medication and treatment for some longer time. [61] Her present symptoms are described in paragraphs 59 to 65 of Exhibit 1 and I do not propose to set them out in detail. I accept her complaints in this regard. She suffers most of these on a daily basis, and from time to time more acute symptoms. [62] These have, I am satisfied, had a major adverse impact upon her day to day life and are the cause or a major cause of the breakdown of her relationship with Mr Ashford who is the father of her two children. One of these lives with Mr Ashford and the other with the plaintiff. [63] She presently lives with her mother and father and they provide assistance to her in respect of various activities which I am satisfied she is not able to perform. I accept the evidence of Mrs Coles, the occupational therapist, in this regard. She requires assistance with the children which will reduce and she will have an ongoing need for six to eight hours per week in addition to this. [64] The plaintiff is currently receiving a parenting payment from Centrelink. Previously she was in receipt of a Newstart allowance which apparently ceased in late 2001. [65] She takes substantial quantities of medication which are set out at paragraph 55 of Exhibit 1. It is hoped that these will significantly reduce in the future. [66] I am satisfied that the plaintiff has had a substantial destruction of her capacity to earn an income and that whilst she has some residual earning capacity it is important not to overstate this. She may be able to work in some supervisory capacity or in some part time position which does not involve any of the activities that I have referred to. The most recent assessment of Mrs Coles is somewhat pessimistic about her capacity to work except for quite limited periods. This is based upon Mrs Coles’ observations of her on that occasion. Nonetheless the evidence taken as a whole, I think, justifies the conclusion that she has a residual, but limited, capacity. -- 9 of 12 -- 10 [67] I assess general damages in the sum of $50,000. Of this I ascribe some $20,000 to the past and allow interest to two percent per annum for 4.5 years producing a figure of $1,800. [68] There is a claim for past economic loss of some $95,000. This is calculated upon the basis of full time employment. An analysis of the plaintiff’s income tax returns would not justify such an approach. Over the period up until the end of 1995 the plaintiff’s taxable income for the years ending 30.6.92, 30.6.93 and 30.6.94 and 30.6.95 are as follows: 1992 $11,612 1993 $79 1994 $12,190 1995 $11,496 The tax paid on these sums appears in the returns which form part of Exhibit 2. [69] I accept that the plaintiff would have been likely to seek full time work given the family needs associated with two growing children but it would, I think, be unrealistic to assess damages upon the basis that she would have obtained it during the whole period, having regard to her work history prior to the accident. [70] Some discount has been applied to the $95,000 by the plaintiff in the calculations advanced to the court but I do not think that this is sufficient. I assess the plaintiff’s loss of earnings up until the present in the sum of $60,000. I allow interest on the difference between this figure and some $46,600 received by way of income substitution at five percent for 4.5 years, producing a figure of $3,015. [71] I allow loss of superannuation benefits at seven percent on the sum of $60,000 producing the figure of $4,200, [72] So far as future economic loss is concerned, the plaintiff has, as I have said, suffered a substantial impairment of her earning capacity, given her lack of qualifications except as a carer (and I am satisfied she is not capable of performing this work). Given her age and her relatively limited residual earning capacity, this element of her claim must loom large. [73] The plaintiff has advanced a claim under this head upon the basis of an inability to work over the ensuing five years and then based upon a loss of $425 per week during that time followed by a reduced loss of earning capacity for the following 30 years. This would take her only until her early fifties. [74] The figure thus produced has been discounted from $185,000 to $150,000. [75] Whether the matter is approached in the way contended for or on the basis of the presently substantially reduced earning capacity to earn an income -- 10 of 12 -- 11 which will continue until she is likely to have ceased work (at an age which, after making appropriate discounts for contingencies and vicissitudes, could hardly be less than the age assumed), the approach appears to me to be reasonable save for the qualification that some further allowance should be made for the risk that she may not have been employed during some periods or that she would have been employed only on a part time basis for part of the period under consideration. I do not overlook the fact that the allowances already made are significant. I allow the sum of $125,000 for future economic loss. [76] I allow loss of superannuation benefits at nine percent on this sum, producing a figure of $11,250. [77] The plaintiff has had and will continue to have the need for assistance in respect of a number of tasks. These are referred to in her own evidence and in Mrs Coles’ reports. The evidence of her mother is that she provides approximately an hour’s assistance per day to the plaintiff. I have referred to Mrs Coles’ evidence. [78] The basis of the claim for past care appears in Exhibit 1 at paragraph 77. The rates agreed upon in respect of the past, however, are greater than what appears there and some adjustment has been made in the amount contended for by the plaintiff. I generally accept the evidence of the plaintiff on this but I think that some discount for contingencies has to be applied in respect of the past claim and I allow $22,000. I allow interest at four percent for 4.5 years on this sum producing an amount of $3,960. [79] The future claim under this head is calculated on the basis of one and a half hours per day for 20 years at $14 per hour. This is a little more than the broad assessment that the plaintiff’s mother gives of the assistance she provides and is less than Mrs Coles’ assessment at present. [80] It can be anticipated that these needs will reduce in the future so far as they relate to the children. Dr James certainly sees some improvement in her psychiatric condition but on the other hand the claim is limited to a claim for some 20 years and it is possible that her needs will persist beyond this. [81] Doing the best I can with the imponderables involved in assessing this claim, I allow $50,000 for future care. [82] I think special damages have been established at $3,827 and I allow interest on $1,500 at five per cent for 4.5 years representing the amounts actually paid by the plaintiff. This is a sum of $337.50. [83] There are claims for future therapy expenses for a period of 12 months based upon Dr James’ opinion and I think that it is appropriate to allow this. This claim is made in the sum of $4,600 and seems to be borne out by the evidence. [84] The plaintiff’s current pharmaceutical requirements have already been referred to. It can be expected that these will significantly decrease. I was -- 11 of 12 -- 12 informed that the plaintiff will no longer receive this medication at the rates she has been paying, which are concessional and related to her receipt of benefits from Centrelink. The claim is limited to some five years and is now advanced in the sum of $14,765. I think some further discounts should be applied to this since the evidence would seem to admit a real prospect of a more optimistic outcome than that assumed. I allow the sum of $12,500 for future pharmaceuticals. [85] There is also a claim for the costs of attending a pain clinic for a week at the Belmont Private Hospital. This is said to be in the vicinity of $6,000 and has been recommended by Dr James and it seems to me it should also be allowed. [86] The total of these sums then is $358,489.50. [87] Twenty-five percent of this total is $89,622.38. [88] I give judgment for the plaintiff against the Second Defendant in the sum of $89,622.38. -- 12 of 12 --