Argue v Wareham & Mercantile Mutual Insurance (Australia) Ltd [2000] QSC 52

SUPREME COURT OF QUEENSLAND CITATION: Re: Timothy James Argue v Terrence Desmond Wareham & Mercantile Mutual Insurance (Australia) Ltd [2000] QSC 052 PARTIES: TIMOTHY JAMES ARGUE (Plaintiff) v TERRENCE DESMOND WAREHAM and MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD (ACN 000 456 799) (Defendants) FILE NO: S7801 of 1999 Brisbane Registry DIVISION: Trial Division DELIVERED ON: 16 March 2000 DELIVERED AT: Brisbane HEARING DATE: 6 March 2000 JUDGE: Mackenzie J CATCHWORDS: PERSONAL INJURIES – MOTOR VEHICLE ACCIDENT – Defendant negligent in failing to adequately warn of intention to turn – plaintiff negligent in attempting to pass on left hand side responsibility 55 per cent plaintiff 45 per cent defendant - lump sum for future economic loss. COUNSEL: M Anderson for the plaintiff K Wilson for the Defendant SOLICITORS: Watling Roche for the plaintiff Mc Innes Wilson for the defendant [1] MACKENZIE J: The plaintiff suffered a serious ankle and foot injury and damage to his nose when a Harley Davidson motorcycle he was riding collided with vehicle being driven by the defendant Terrence Desmond Wareham. The accident occurred on 2 April 1997 the Mapleton – Obi Obi Road. At the place where the accident happened the road was straight although slightly uphill. The weather was clear and sunny. [2] According to the plaintiff, he caught up to the defendant's vehicle which was travelling at about 30 to 40 kilometres per hour and followed it at a distance of about two car lengths for some distance. Photographs of the location show double white lines with gaps where driveways meet the road. The plaintiff said that the defendant's vehicle began to cross onto the wrong side of the road (which has one -- 1 of 4 -- 2 lane in each direction) near the end of the closest double lines in Exhibit 11, and went substantially across onto the wrong side of the road. [3] The plaintiff says that he inferred that it would turn into a driveway on the right of the road and decided to pass the vehicle on the left. However, just as the vehicle reached the vicinity of the driveway shown on the left of Exhibit 11 and the plaintiff was approximately level with the rear of the vehicle, he noticed the left indicator flashing. The vehicle began to turn into the driveway and because he had no time to avoid it he collided with it in the area of the front wheel and door. He was thrown into the unformed gutter just beyond the driveway. The motorcycle came to rest on the footpath beyond him. [4] The driver of the vehicle did not give evidence because according to evidence from a doctor who had treated him since September 1997, he had suffered a sub- arachnoid haemorrhage in 1987 which left him with significant neurological deficit, some behavioural changes with periods of marked depression, frustration and aggression and with very little insight into the results of his actions which were at times bizarre. At the time of writing the report, 28 September 1998, the doctor thought that because of his cerebral pathology he was not responsible at times for his actions. However, since he had only been treating him since about six months after the accident he did not feel he could give an informed estimate of what he was like at the time or whether he would have experienced problems in operating the motor vehicle. [5] The only other witness who was involved in the accident was Mrs Wareham who was a passenger in the vehicle. She gave evidence only of hearing the bang and seeing the plaintiff flying through the air. She said that she remembered asking him after coming back to where he lay, if he had seen the indicator and that he had said that he had. A statement given by her in December 1994 says that as the vehicle slowed down to enter the driveway she heard the indicator clicking. Her evidence does not establish satisfactorily how long before the turning manoeuvre began that it was activated. Mr Wareham was also interviewed by a police officer shortly after the accident and although he said he put the indicators on “bloody half a mile down the road” I discount the reliability of that as an estimate. [6] I act on the basis that the indicator was turned on a short time before the collision occurred but at a time when the plaintiff was still in a position relative to the vehicle where he could see that it had been activated. I accept that, as the plaintiff told the police officer who interviewed him some days after the incident, he was accelerating at the time when he first saw that the indicator was flashing. [7] I find that the driver of the vehicle was negligent in failing to give adequate warning of his intention to turn left into the driveway. I am satisfied, on the basis of the plaintiff’s evidence, and on the evidence of Mrs Wareham about the narrowness of the driveway, the way in which the driveway had to be approached and the relatively heavy steering of the vehicle, that the driver deviated from the correct side of the road preparatory to entering the driveway. [8] While it is difficult to think that the plaintiff would have attempted to pass the vehicle on the left had he not thought that there were reasons why it would be safe for that manoeuvre to be executed, in my view his action in trying to do so was -- 2 of 4 -- 3 negligent in the circumstances. This proposition was explored in the following passages of the plaintiff’s cross-examination: “Do you agree that it would have been a prudent course to stay back until you had determined precisely what this motorist was going to do? --Well, there was no indication, right, and the road was clear and there was enough room for me to just keep going straight ahead. … Do you agree that it would have perhaps been more prudent to have waited to see what his intentions were, to keep your motorcycle travelling at a slow rate of speed? – He still could have done something silly even if I stuck behind him. You would have then been in a position to deal with it more capably travelling at a much slower rate of speed, wouldn’t you? Yes?-- Yes.” [9] There was evidence that the driveway on the right before the driveway into which the vehicle turned is 50 metres away. Both vehicles had clearly passed it before the manoeuvre which caused the collision began. The next driveway on the left is 27.8 metres further on. The relative positions of the driveways, the distances of driveways on the right from the one where the accident occurred and the fact that the indicators of the vehicle in front gave no clear message as to what was intended until about the time the plaintiff decided to overtake it, lead to a conclusion that it was negligent to infer or assume that the vehicle, by crossing the centre line, was going to be driven to the right rather than the left. It was a situation where it was incumbent on the plaintiff, in circumstances where the vehicle in front was being driven unusually, to exercise care to establish what the driver intended to do before attempting to pass it. [10] The only remaining issue with regard to liability is the apportionment. In Braund v Henning (1988) 79 ALR 417 the High Court stated that barring individual circumstances which may result in a different outcome, the driver of a following vehicle which collides with a vehicle proceeding ahead of it is usually held primarily liable for the consequences of the collision. Mr Wilson submitted that the plaintiff should be held two-thirds responsible for the accident. In my view in the particular circumstances of the case this is too high a proportion for the plaintiff to bear. In my view an apportionment of 55% responsibility on the part of the plaintiff and 45% on the part of the defendant is appropriate. [11] The remaining question is quantum. The plaintiff principally worked as a roof tiler although he also worked in other capacities in the building industry. However, he had suffered an injury to his neck in a motor vehicle accident in July 1993 and had not worked in the building industry since that date. He attributed this partly to a decision on his part to become a supporting parent of his child. However he claimed in previous legal proceedings concerning the 1993 accident that he had totally lost his capacity to work in the roof tiling business as a result of it. While one might discount an interrogatory to that effect if the circumstances justified it and give weight to evidence of an orthopaedic surgeon as to the extent of the disability, he confirmed unequivocally in cross-examination that before the latest -- 3 of 4 -- 4 motor vehicle accident he had formed the view that he would never be able to return to work as a roof tiler. [12] In the circumstances serious questions are raised about the level at which he should be compensated. No evidence was led that there was any other occupation that he might follow and he stressed his lack of educational qualifications as a detriment in this respect. I do not accept that he was on the point of beginning to look for work again at the time when the accident happened. In the period after he acquired transport again, which was presented as a matter of some significance in regard to his failure to seek employment, he had nevertheless not sought any employment. [13] In the circumstances it is a case where he must be compensated on the basis of a lump sum for loss of a chance to obtain some kind of menial work which he believed might be within his capacity although, on the view I take of the matter, it was problematical whether he would in the future make serious attempts to obtain work on a regular basis. The plaintiff is currently 38 years of age. Allowing 20 years of potential working life into the future, I consider that a lump sum of $40,000 is a realistic assessment of future economic loss. No past economic loss has been satisfactorily proved. I must also make allowance also for the cost of an operation on his nose and for the possibility that he may need further ankle surgery. I allow $4,000 in view of the uncertainty about the second. So far as pain and suffering is concerned in my view $40,000 is appropriate, half of which should be apportioned, as the parties agreed, to past loss. Interest on that amount will be $400. Out of pocket expenses are agreed in the sum of $1,183.15. Past care is agreed at $980. The amount of damages is therefore $86,563.15. After apportionment the amount to be recovered is $38,953.42. I give judgment for the plaintiff against the defendants in the sum of $38,953.42. I will hear the parties as to costs. -- 4 of 4 --