Buechmann v Cooper & FAI Insurance [1999] QDC 259

IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND [Before O’SULLIVAN DCJ] [Karl Heinze Buechmann v Evan Cooper and FAI Insurance] Plaint No 26 of 1998 BETWEEN: KARL HEINZE BUECHMANN Plaintiff AND: EVAN COOPER First Defendant AND: FAI INSURANCE Second Defendant JUDGMENT Judgment delivered: 24 September 1999 Catchwords: Personal injury - motor vehicle accident - liability and quantum - neck injury - extent of pre-existing physical and psychiatric problems - loss of future earning capacity Counsel: Mr Grant-Taylor for the Plaintiff Mr Holyoak for the Defendants Solicitors: Boyce Garrick Lawyers for the Plaintiff McInnes Wilson Solicitors for the Defendants Hearing Date(s): 15, 16 April 1999 (Maroochydore) -- 1 of 11 -- 6 September 1999 (Brisbane) -- 2 of 11 -- IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND Plaint No 26 of 1998 BETWEEN: KARL HEINZE BUECHMANN Plaintiff AND: EVAN COOPER First Defendant AND: FAI INSURANCE Second Defendant REASONS FOR JUDGMENT -O’SULLIVAN D.C.J. Delivered the 24th day of September 1999 The Plaintiff, who was born on 7 November 1957, was involved in a motor vehicle accident on 25 May, 1997 on Ringtail Road, Cooroy. The plaintiff gave evidence that he was travelling at a slow speed and trying to be as far to the left as possible when he approached a corner and spotted another vehicle heading towards his vehicle which looked to him on the wrong side of the road and which then travelled in front of the path of his vehicle. He swung the wheel of his vehicle to avoid a collision and the grooves grabbed the truck and it started skidding as soon as he braked. The other vehicle was on the wrong side of the road and slid straight across his path. His vehicle hit the front driver’s panel and mudguard of the other vehicle and a head-on collision was just avoided. He said the other vehicle was “totally on the same side” as his vehicle and “was fairly hooting”. -- 3 of 11 -- It was not in issue that the road was narrow. The plaintiff agreed in cross-examination that vehicles have to move over as far as they can to pass on the road. He was not prepared to agree that vehicles tend to travel in the centre of the road, and he considered the road is not wide enough to travel safely in the centre. He agreed that because of the narrowness of the road the wheels of the driver’s side of his vehicle may have been on an imaginary centre line. He was travelling at 20 kph as he approached the corner. He had driven on the road about a dozen times prior to the accident. The first defendant gave evidence that he was very familiar with the road and travels it at least once a day. As he approached the corner, travelling at 30-40 kph, he saw another vehicle through the trees from 20 metres and slowed down and tried to get on his left as much as he could. He was in the middle of the road, “everyone travels there”, and his tyres were running down the grooves; he veered to his left and put on brakes; the other vehicle was skidding and he put his brakes on harder and was half on the road and half off the road. He said that the plaintiff did not make any attempt to go left and the tyres of that vehicle turned towards his vehicle. He considered that if the plaintiff had turned left earlier there would not have been an accident. Immediately prior to the accident the plaintiff’s car was on the incorrect side of the road and his car was down the centre. Photographs were tendered, and evidence given, of skid marks on the road. The photographs are helpful, but not conclusive. I consider they support the proposition that the plaintiff’s vehicle was to the left and the first defendant’s vehicle was on the incorrect side of the road. I find the first defendant’s evidence unconvincing as to where his vehicle was, and where the plaintiff’s vehicle was immediately prior to the impact. On the whole of the evidence, I find that the first defendant’s vehicle was travelling on the incorrect side of the road immediately prior to the accident. -- 4 of 11 -- 3 I find that there is not sufficient evidence to support the allegation that the first defendant’s vehicle was travelling at an excessive speed at the relevant time. I find that the plaintiff was not driving down the middle of the road because he thought this was dangerous. He was driving as far to the left as was possible in all the circumstances. I find that his reaction to the danger of the approaching car was reasonable in all the circumstances. I find that the accident occurred solely as a result of the negligence of the first defendant in travelling on the incorrect side of the road. I turn now to quantum. The plaintiff suffered injury to his cervical spine. His injury was treated with physiotherapy and conservative treatment but his symptoms did not improve. He needed help for 1 hour per week for 6-8 months after the accident, but not since. Three months after the accident he obtained employment as a paving foreman with Noosa Landscapes but was unable to continue after 5 weeks for medical reasons. He has been on a significant range of medication since August 1997, and still takes Panadol Forte daily. If he does not take them his neck seizes up and he gets headaches. On the evidence, the combination and quantity of medication taken by the plaintiff will need to decrease in the short to medium term. -- 5 of 11 -- 4 The plaintiff was due to start as a general foreman with Noosa Landscapes the day after the accident on a “Jobstart” programme. He was unable to do so because of the accident. His suitability as a general foreman, rather than as a paver, had not been tested prior to the accident. He felt depressed because he felt “the door had slammed” in his face; an opportunity had been lost, and he is frightened the door will slam again. The plaintiff had a history of severe drinking problems but had stopped drinking for 3 years prior to trial. He experienced pain and stiffness in his neck which limited his movements severely, and also had intermittent problems with radiating pain and paraesthesia in his left arm and hand. The X-rays, EMG and MRI and other tests show no compression at C6/7, no changes to facet joints, no internal derangement and no bony injury. Yet the plaintiff has ongoing symptoms. Dr. Todman considered that pain is a primary indicator, and the plaintiff could (notwithstanding the tests) have suffered a musculo-ligamentous injury, aggravation of mild pre-existing degeneration or possible facet joint or other structural injury, or a combination. He considered the plaintiff has a 15% permanent disability of the whole person related to the cervical injury. In his report of 17 April 1998, Dr. Coyne referred to physical and psychological problems and a permanent impairment of the order of 5% of the whole person. Dr. Curtis diagnosed musculo-ligamentous injuries and aggravation of degenerative change, and quantified a 5% loss of whole body function. He considered that there was an equal chance of degenerative changes occurring in 10 years without the accident. -- 6 of 11 -- 5 Dr. Morgan diagnosed a 5% impairment of bodily function, 2/5 relating to the pre-existing condition. In contrast, Dr. Edwards opined that it is unlikely that any permanent injury to the neck was sustained in the accident. I find that the plaintiff has suffered headaches, severe pain in his neck and to a lesser extent his arm, and his movements have been severely limited. I find that his permanent disability is 5% of bodily function. As well as physical injury, the plaintiff has experienced psychological problems since the accident. His problems are severe and include depression, acute anxiety, inability to concentrate, impotence, anti-social behaviour, over-sensitivity to criticism and pessimism. Dr. Grant considered that the plaintiff had personality dysfunction and vulnerabilities including dependancy traits. He considered that the plaintiff needs 10-12 sessions at a minimum, and possibly also intensive group behavioural therapy, which has a good success rate. He opined that the anxiety and panic attacks can be controlled with medication (for between 1-5 years) and cognitive behavioural control and they are no longer a barrier to his working. Dr. Wiltshire diagnosed a dependancy trait associated with severe anxiety in the form of personality disorders. He agreed with Dr. Grant in recommending individual treatment, combined with a cognitive behavioural therapy group, with good prospects of recovery. Dr. Gelb diagnosed a mixed personality disorder with vulnerability to decompensating under stress. He considered the accident to be one stressor which exacerbated prior symptoms. He recommended a focus on family doctor support rather than medication and psychotherapy. Dr. Nothling considered the plaintiff’s level of symtomology to be inexplicable, especially after -- 7 of 11 -- 6 2 years, and expressed concerns about the credibility of the history. He agreed he would be on medication for a period of time. He considered that there was a greater than 50% chance of decompensation if there had been an equivalent life event to the accident. He considered that his alcohol-free period was not significant and had a guarded prognosis about alcoholism. I find that the plaintiff has serious psychiatric problems which will require therapy, both group and individual, which should produce good results fairly quickly. I find that his continuing physical and psychological problems are causally related to the accident. I award $30,000 for pain, suffering and loss of amenities. The plaintiff’s economic loss is difficult to quantify because of the combination of his physical and psychological problems. He has been in receipt of a Disability Pension of $391 per fortnight. Economic loss to trial: 119 weeks' loss of income between 26.5.97 and 6.9.99 in position as labourer with Noosa Heads Landscaping @ $441.58 nett loss per week $ 52,548.02 Discounted by 20% for contingencies $ 10,509.00 $ 42,039.02 Less actual income earned in employment with Noosa Heads Landscaping between 15.8.97 and 25.9.98 $ 2,649.50 $ 39,389.52 Say $ 39,000.00 There is a big gap in the figures suggested by Counsel for loss of future earning capacity. The plaintiff was asked whether he would give paving a chance now, and he replied that it is hard -- 8 of 11 -- 7 to get full-time employment, and he had not done any strenuous work since August 1997. He did not know if he would cope with paving again, and said he was “planning day-by-day.” As a foreman he would have earned $18 per hour including truck and tools. He would have worked 40-60 hours per week. Mr Corrie of Noosa Landscapes gave evidence that he has plenty of work and it is hard to get experienced people. The man who replaced the plaintiff as a general foremen worked for him for 2 years after the accident. Mr Corrie pays pavers $15 per hour. The plaintiff was very good at paving and would have worked 45 hours per week. He was sceptical whether the plaintiff could find a job as a paving estimator. The plaintiff agreed that there is a vast variety of jobs he can still do: “It’s not as though I’m saying I’ve lost my arm”. He agreed he could do security, car park attendant and/or light janitorial work. However, he has some doubts about his ability to cope with too many people. Dr. Curtis considered that the plaintiff has a problem with repetitive lifting, bending, twisting and turning. He could do physical work with occasional bending, and lift moderate to heavy weights. Dr. Nothling considered the plaintiff had a quite reasonable chance of returning to full-time work, initially half-time. Dr. Todman considered that he could not return to work as a paver and because of his pain problems he may also have problems with light duties. Dr. Morgan considered he could follow a variety of occupational pursuits such as car park attendant, gate attendant, traffic warden, light storeman. He could also probably work as a paver with “tolerable discomfort”. On the evidence as a whole, I find that the plaintiff cannot return to work as a paver. -- 9 of 11 -- 8 I find that it is more probable than not that he would have been able to continue to do so until retirement if the accident had not occurred and would not have been precluded by any pre- existing psychiatric or physical problems. However, it is more probable than not that he may not have remained in steady employment, as is indicated by his pre-accident work history. I find that the plaintiff’s future earning capacity is now limited because he will find it difficult to find work because of his neck disability, his poor work history, lack of literacy and ongoing psychological problems at least for some time. It is more probable than not that even with extensive successful psychological treatment he will not be fit for part-time work for 12-18 months and for full-time work for 1 to 5 years. During this period there should be a 30% discount for the contingencies related to this plaintiff. Thereafter, he should then be able to do the type of work he agreed he can physically do. There should be a 15% discount for nominal contingencies for both periods. A global award of $50,000 reflects this loss of earning capacity as a paver/foreman. SUMMARY Pain, suffering and loss of amenities $30,000 Interest @ 2% on $20,000 thereof over 834 days between 25.5.97 and 6.9.99 $910 Past economic loss $39,000 Interest @ 5% on $15,475 thereof (after allowance for interim receipt of social security payments of approximately $23,500) over 834 days $1,765 Past loss of employers’ contributions to superannuation @ 6% of the claim for past economic loss $2,340 Interest @ 5% on $2,340 over 834 days $265 Future impairment of earning capacity $50,000 Future loss of employers’ contributions to superannuation calculated @ 7.5% of $50,000 $3,750 Past care: 30 weeks’ services and assistance immediately post-accident @ one hour’s assistance per week @ $11.00/hour $330 -- 10 of 11 -- 9 Interest @ 4% on $330 over 1.9 years since mid-point of period over which services were rendered $25 Future pharmaceutical expenses for neck pain $1,000 Future pharmaceutical expenses for psycho-tropic medication $1,500 Allowance for plaintiff’s future participation in psychotherapy $2,280 Allowance for travelling expenses for psychotherapy $1,200 Allowance for future physiotherapy $617 Agreed special damages $2,000 $136,982 I order that the Second Defendant pay to the Plaintiff the sum of $136,982, together with the Plaintiff’s assessed costs of the proceeding. -- 11 of 11 --