Cook v Clark [1994] QSC 122

· Q::ti l' se. q4{ 1d;;J. J"• State Reporting Bureau 1 (~ TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bu:eau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION DERRINGTON J No 39 of 1988 LESLIE ALFRED COOK and ~ j REV!SED CJPIES ISSUED Stato Raport!ng Bureau /1 - Date.....> 1 j I Plaintiff TREVOR MAXWELL CLARK Defendant BRISBANE· .. DATE 20/05/94 .. JUDGMENT 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 16 -- 200594 ~c (Derrington J) HIS HONOUR: Well, having found the defendant guilty of negligence and having found that the plaintiff's own negligence contributed to that to the extent of 20 per cent, in the result I give judgment for the plaintiff against the ·defendant in the sum of $126,845.92 with costs including reserved costs, if any, to be taxed. I will reserve the question as to what scale that should be paid-upon. MR NORTH:. Thank you, Your Honour. HIS HONOUR: I publish my reasons. HIS HONOUR: Further to the judgment delivered this morning, I order that the costs awarded be on the District Court scale. HIS HONOUR: I will certify that it was appropriate to have Queen's Counsel to appear for the plaintiff, but alone. JUDGMENT 2 10 30 40 50 60 -- 2 of 16 -- IN THE SUPREME COURT OF QUEENSLAND Townsville No. 39 of 1988 [Cook v. Cl ark] BETWEEN: LESLIE ALFRED COOK ·Plaintiff TREVOR MAXWELL CLARK DELIVERED: CATCHWORDS: COUNSEL: SOLICITORS: Defendant JUDGMENT - DERRINGTON I. 20/05/1994 Negligence - Road accident - Collision on unsealed country road in dust-cloud caused by another vehicle - Defendant's vehicle in both wheel tracks on crown of road - Plaintiff's vehicle occupying one track- Responsibility 80/20 against Defendant. Damages - Plaintiff's retrenchment - Prospects in consultancy business - Considerations. Mr J. Clifford Q.C., with him Mr T. North, for the Plaintiff Mr R. Myers for the Defendant. Boulton Cleary and Kern, Townsville, town agents for Conroy and Conroy, Mt. Isa for the Plaintiff Mclnnes Wilson and jansen, Brisbane, for the Defendant. HEARING DATES: 21st and 22nd April 1994 -- 3 of 16 -- IN THE SUPREME COURT OF QUEENSLAND Townsville No. 39 of 1988 BETWEEN: LESLIE ALFRED COOK Plaintiff AND: ) TREVOR MAXWELL CLARK Defendant ) JUDGMENT - DERRINGTON I. The plaintiff is a forty-seven year old man who was forty years of age at the ) time of the accident on 21st April 1987 when he was injured in a collision between a car driven by him and one driven by the defendant. He was then the Regional ) Supervisor in the Dairy Division of the Department of Primary Industries at Gympie but was on holidays with his family. His parents were members of the party but their vehicle was some distance ahead and their position is irrelevant to these proceedings. The plaintiff was driving in generally a northerly direction on an isolated straight unsealed country road. It was about one chain wide with a pair of wheel tracks on its crown. In accordance with convention the plaintiff drove in the wheel tracks and when he met approaching vehicles each would move over so that the -- 4 of 16 -- ~---~ ~--~--- -----~~~~ ------~ ----------~ 2 offside wheels of each vehicle were travelling in its nearside wheel track. This left a safe, margin between them. Very shortly before the collision with the defendant's vehicle the plaintiff had passed another vehicle driven .by Mr Luxton, a friend of the defendant, in accordance with this convention. The plaintiff says, and he should be accepted as an honest and reliable witness, that Mr Luxton's vehicle moved even further off the wheel tracks than. convention required; but any difference on this point is immaterial, for it is the significant movement of the vehicle as indicative to the defendant of an (~ approaching vehicle, and not its precise extent, that is relevant. It is argued for the defendant that there is some evidence that Mr Luxton's ( vehicle remained fully on the tracks at all times. This argument is achieved only by a convoluted argument depending on highly selective extraction of evidence of a general nature.. It is contrary to the evidence of the plaintiff, who should be believed, that he had his offside wheels in his nearside track when he passed Mr Luxton's vehicle and that it had also moved over. Mr Luxton's evidence, though ( not specific, for he could not remember, tended to support this. The defendant's argume~t depends on the theoretical proposition that the plaintiff moved entirely off ( the road, for otherwise on. Mr Luxton's own account, he would have moved over at least so far. as to occupy only the left-hand wheel track . . The argument depends also upon Mr Luxton 's theoretical explanation based on his usual habit of remaining entirely on the wheel tracks when an approaching car moves right off the tracks, though sometimes as a courtesy he will move over part of the way first. :However, the,uncontradi~ted evidence is that the plaintiff did not move right off the tracks. -- 5 of 16 -- "" _____ --~~-----------"------ 3 Mr Luxton could not remember. Significantly, he also said that if the approaching vehicle moved over to share the wheel track, if the" road surface permitted it he himself might move right off the tracks, depending" on the availability of a suitable width of trafficable toad. This is completely consistent with the plaintiff's account of what happened and with the nature of the roadway in that place. It is unnecessary to analyse further the defence arguments on this point. It" is ) sttongly established that Luxton's vehicle moved well to its left as the plaintiff says, so that his own remaining on one wheel track was safe in respect of the passing J procedure and in accordance with Mr Luxton's habits. Because there was a fairly strong easterly wind, thick dust caused by Mr Luxton's vehicle moved fairly quickly across the road to theplaintiff's side, leaving "•" at least part of its own side relatively clear. The plaintiff could see this in advance"· and he realised that his vision would be obscured in this way. However, he slowed ) down to about 40 k/h. and drove into the thick dust..,.cloud for a short time, during \ _) which he could not see ahead. Then he can remember no more. There was a collision with the defendant's vehicle which of course was following behind Mr Luxton's vehicle at a speed of about 80 k/h. It was occupying · both wheel tracks so that it was partly on the incorrect side of the road. It must have been travelling relatively closely behind Mr -Luxton's vehicle, because on the defendant's own account he did not see the plaintiff's vehicle until it emerged from the dust cloud about fifteen to twenty yards~ ahead of him. ·He said that it appeared to be moving at an angle across towards him and that he attempted to swerve away· -- 6 of 16 -- 4· and apply his brakes, which he thought may have operated before the impact. It was a head-on impact between the offside quarter- of the front of each vehicle. More significantly the defendant says that at all times he had been able to see the rear near-side corner of Mr Luxton 's vehicle ahead of him and that it did not I leave· the wheel tracks. As it· has been explained, this is wrong and while one explanation is that he was not keeping a sufficient lookout, another explanation is that his view was obscured by dust because he was too close. In any case, it was obviously very dangerous for the him to drive at that speed (' so_ clos~ly to the cloud of dust that a vehicle emerging from it with its wheel in the near-side track would first appear only such a short distance from him. It must be ( remembered. that the strong wind would also have been clearing the dust fairly quickly from the plaintiff's side of the road in the same way that it was doing so on the defendant's side. This issue has been discussed by the defence as though it were a question as to the distance between the defendant's vehicle and that of Mr Luxton ahead of him. ( This is merely a distraction. The point is his driving at 80 k/h. partly in or close to the dust-cloud which might. conceal another vehicle, while he himself continued to ( occupy .both. wheel tracks., In all the. circumstances this probably placed him too closelY.' to Mr Luxton's car, but. this is not the point. His negligence in this respect arises because of his position .in relation to the dust-cloud. Because he was too close to a blind spot caused by the dust-cloud, he was also too close to. Mr Luxton's car, but it is the former that constituted his negligence. This danger was compounded. by his. failure tQ keep a _lookout sufficient to note Mr Luxton's car's movement to the left that would·have indicated the presence -- 7 of 16 -- 5 of an approaching vehicle. (This assumes that, as he claims, he could still h·ave seen it, but if this were not so, then the fault lay in driving in a position where he could not see it.) He acknowledges that had he seen it move across; he himself would have inferred the probable presence· of an approaching vehicle which might follow the usual convention in relation to the wheel tracks, and he says he would then have moved over himself. Had he done this, the accident would never have occurred, but by remaining in both. wheel tracks in such circumstances he generated a highly ) dangerous situation. It is possible that his consumption of alcohol, even if it were only to the ) extent which he says, may have dulled his caution~ so that he drove too close to the dust-cloud, and inhibited his · concentration, so that he failed to watch the movements of Mr Luxton's vehicle sufficiently. His lack of caution and .failure to keep a proper lookout are established, so the presence of any intoxication adds · nothing and need not be determined. ) His evidence, which was not contained in his statement giveri to the police on 4 July 1987, that the plaintiff's vehicle swerved towards him and that he veered ) away and applied his brakes with some result, was very unconvincing and seems to have been the product of rationalisation~. perhaps directed by his knowledge of Mr Larsen's evidence, which will be discussed shortly. ·His late father's statement, made at the time, similarly made no such· suggestions and the only detail provided by · that gentleman placed the plaintiff's vehicle on the defendant's right-hand side of the road. Furthermore, the position of the vehicles at rest in relation to each other and to the direction of the road is grossly inconsistent with the defendant's present -- 8 of 16 -- 6. account .. They are roughly in the position which is often found in the case of a head- on .cqllis.ion .of the front off-side corners of both ears ...where the rear sections of both swing round to the left while the front of each stays at about the centre of the road. On the defendant's account, he was veering to his left and the plaintiff's car was coming into it from his front right at an angle. The effect of that must have seen the front part of his car move towards. the left of the road. It did nothing like that. If his account was honest his recollection of this relative direction of travel . ' . of the cars may have been influenced by his disorientation and the suddenness and cemergency of the .situation. These may also have been the product of his lack of vision and concentration. Had he instinctively swerved a little to his left without ( .._ realising_ it, then in the absence of suitable points of reference because of the dust- c~oud, he may have interpreted the plaintiff's vehicle's approach from an angle on his right as something attributable to the plaintiff's course rather than to his own change of direction.. This however is only an hypothesis which might lend some respectability to his account. If it is not a satisfactory explanation, then the quality ( of his account is reduced to that extent. He did not appear to be a particularly credible_ witness, and his evidence is demonstrated to be grossly wrong on other (_ serious points. While the plaintiff's absence of recollection (and possibly his absence of vision) prevents him from saying where he drove, he was a very experienced driver as well as .a very responsible man in general and he had his family with him. Though allowance must be made for the possibility that he was disoriented, it is very difficultto believe that ~ven th~nhe would have allo.wedhis car J;o move so far to his right i~ those circumstances, particularly as his speed had been so reduced. -- 9 of 16 -- -------------- 7 There was evidence by' a Mr Larsen who came on the scene soon after the collision but was not asked to give a statement to the police. He spoke of skid - marks of about ten metres which· he implied were caused by the defendant's vehicle's having moved generally from the wheel tracks across to its left. He obviously drew the inference that these were caused by the braking wheels of the vehiCle as it was-- steered to the left. He seemed to have some difficulty with his recollection, which is not surprising in view of the time that has passed since he saw these things. More importantly, the implications which he would advance from his account do not even accord with the evidence of the defendant or his late father as to the· J time available to him to have caused skid marks by braking. On their account, there is no practical possibility of his vehicle's leaving marks of that length from braking. In addition, if they were simple brake ma~ks from the defendant's vehicle Mr · Larsen's placement of their position is also at some variance with the implications of the evidence of the defendant and his father, particularly with their accounts which ) were given shortiy after the time of the accident. In the absence of more formal inspection and recording of these ·matters, it is J difficult to rely upon Mr Larsen's meriwry of this matter above the other evidence. This does not overlook the possibility that the defendant and his father may have been in some error , as to distances because they were speaking of events which happened suddenly and unexpectedly, while Mr Larsen made a deliberate examination· of the marks; but he did not have the whole of the evidence before him at the time and he has obviously entertained some retrospective theorising of his own to explain the marks. This can be ·a s·erious .impedi~ent to· the accuracy of .later merriory,. which then tends to cause recollection of the facts to fit the theory adopted. -- 10 of 16 -- -------------------- ·--- --- -- 8 '· It i~ not ev~n assured that the skid marks .which he saw. could be related to this accid~nt,. and. even if .they were, it is also possible that they may. have been caused by ;the rear wheels of the defendant's vehicle as they swung around after the impact. From the final position of the rear of the vehicle after the impact, it is clear that it mov~d in a clockwise direction while the front remained at about the centre of the wheel tracks. Such a course .by the rear wheels could leave marks in . the position. described by Mr Larsen. . '-~· ·.. •. . Conversely, while the resting positions of vehicles after impact is not a good guide to their anterior direction of motion, it is difficult to understand how the ' ~ . . ' . ' vehic.les here could have r~ached their agreed resting places as depicted in the plan cand photos that were tendered if the wheel marks represented the position of the front of the defendant's vehicle at the time they were .made. Their coarseness due to the unsealed nature of. the surface that carried them makes it more difficult to accept_ any inference from this evidence. . _Probaply. aw:are of this evidence pf .skid marks, and no doubt recognising their. . c possible implications, in his evidence the defendant tried more than once .to emphasise. t?e. sugg~tion that in estimating the distance. separating them when he C first saw, the plaintiff's vehicle, he was not a competent judge of distance. In this he was. quite unconvincing. It appears also that he tended to try to improve his position. ' . ' . . in his description of his attempt to swerve . away and of the extent to which he succeed~d in braking... The conclusion is therefore .that the collision was the result of the defendant's ' . . . . . . . . driving on bot~ wheel tracks whil~ the plaintiff was. driving only in, his nearside one. ' • r ' • . • • . ··• with littl~ if any_ deviation by either before impact. The defendant was seriously -- 11 of 16 -- ~-- --- ---~~---~---~~--~~- ~~~~~~-~--~--~~ 9 negligent in this conduct, taking into account his proximity to the dust-cloud from which any ~uch vehicle might suddenly emerge. He was further negligent in that he failed to watch the leading car when its 'movements· would have warned him· of danger. This still leaves the question of contributory negligence of the plaintiff. All that can be said against him is that with visibility totally obscured he continued to drive at 40 k/h. through the dust-cloud with one wheel in the tracks which he knew ·-··· ) might be occupied by an approaching vehicle. Whilst his driving in such a position was in conformity with convention in ordinary circumstances, it has not been and ) cannot be said that the convention properly applied where the driver's view was entirely obscured by dust. There is an obligation upon every driver to take reasonable care for his own safety extending even to reasonable anticipation of foreseeable negligence on the. part of other drivers: Sibley v. Kais (1967) 118 C.L.R. ·424. This applies even though ) he may have the benefit of some traffic regulation such as the right of way; ·and this must extend even more strongly to a driving convention such as that in issue here. ) Though not to be expected as a matter of course, the conduct of the defendant was reasonably"'fof~eeable Skewes v. Public Curator (1956) St.R.Qd. 143, ·. 148; Schmidt v. Schmidt (1969) Q.W.N. 3. Consequently the plaintiff' should not have remained on the tracks at all as he drove through the dust-cloud and he should have slowed down further or stopped. There is no suggestion that had he done this there could have been a vehicle- following so closely that the plaintiff's vehicle may have been struck in the rear and he knew this for he had a. long. view to his rear• before entering the dust-cloud. However compared with the·- negligence of the -- 12 of 16 -- 10 defendant, his responsibility for the accident was of a minor order and should be apportioned at twenty percent of the. total responsiQility. Happily the parties have been able to reach consensus on most of the heads of d~rnage as follows: Special damages Interest on %536.40 Past economic loss Interest General damages Interest on $20,000 TOTAL: $ 13,900.40 402.00 27,000.00 4,455.00 '40,000.00" '.-~· 2,800.00 $ 88,557.40 The rernaini_ng issue, upon which . understandably the parties have had · some differences, is the component of future economic loss. The preliminary question is whether the plaintiff's voluntary transfer from the position in the Department that he held at the time, which would since then have afforded him promotion, to another position in the Department in Brisbane was a substantial result of his injuries. .An important contemporary operative factor was hi~ desire for a position where he was not often absent from borne in his car in the course of his work. This was to avoid distress to his children, who bad lost their mother and had. seen their father, the plaintiff, seriously injured; and who were themselves seri~usly injured in this motor accident. M.~reover, his children, particularly his seriously brain-damaged daughter, could be. better cared for in Brisbane.. . These . certainly constituted serious reasons for his _decisions to seek a transfer,:,but his:physicaL di~abilities from his injuries were plainly so severe as to impede his capacity to perform his work, especially: the. demands for long and c c (_ c -- 13 of 16 -- --- ---·····-~-------- . ---~----------- 11· sustained driving of a motor vehicle. When he made his decision he could foresee these problems, and he was right. In the erid his recovery was· remarkably good, ., much better than he would have expected at the time of his decision, but even then, when he returned to work, he was still experiencing these difficulties that he had · expected to a disabling degree. Consequently he should be believed when he says that the anticipated effect of his disabilities on his capacity to perform his work was a substantial reason for his ) application for a transfer. They would have had this result even if the added motive ~-" of the welfare of his children had not existed. He is therefore entitled to recover his losses flowing from his need to abandon the career path which he was following at that time. The position which he· now occupies produces a loss of $190.00 per week compared with the income from the position to· which he would. probably have beeri promoted had he not been injured in this accident. This is reflected in_,. the _) component for past economic loss shown above.. In addition to- that~ there is a loss which he is likely to sustain by reason of changes in the Department, which has ) offered him the choice of a transfer to an -inferior position, which would have produced a further loss of about $100.00 per week net compared with his putative : wage had he not been injured, or a redundancy package of $45,947.72 net. His choice of the latter is justified because, with others in his Department placed iri a like position, he intends to set up a scientific consultancy business which they hope will have access to the dairy industry development occurring in the Asian countries. This affords him some chance of avoiding the financial loss and loss of self~esteerri that. would be the consequence of a demotion in his Department. -- 14 of 16 -- ~~~--~--- 12' Even ·on the financial side alone, this choice is well-advised. Although his future, income-earning capacity from this source is uncertain, subject to a risk it is probably better in. the long term than the_ salary attached to the inferior position which he has rejected.· Fairly :clearly there will be a loss of income for some period .. until the business proves to be profitable, if at all. As against that, it must be taken into account that he will. be building up an asset in the form of his share of the goodwill of the business, which he should be able to sell on hiS retirement from it. He would have had no such asset if he had remained in the public service. C'j While it has no present established . goodwill, its members are all very i~telligent men and they already have. business contact in this field with potential cclients in Asian countries. Their expertise should be well known and their experience should have provided them with knowledge and understanding of the market. -There was only one witness, Mr Miller who expressed serious doubts of its sucj:ess, though the plaintiff himself acknowledged failure as a possibility. Mr Miller did not indicate any knowledge of the details of the favourable factors known to the C plaintiff. a!ld his partners and little should be made of his doubts except that it shows that the venture is not an assured success. In the end it is difficult to forecast the c result, the range of which extends from total failure to such success that the plaintiff would be considerably better off than if he had never been injured. Both of these extremes are far less likely than the prospect that the business will be modestly successful, but the chances are that in the final result the plaintiff will be no better off than he is now. The redundancy package which he is to receive must also be taken into account, but part of that consists of the cash realisation of assets which already -- 15 of 16 -- --- ---------· 13 belong to him; such as recreation and long-service leave. Another diminishing factor is the additional benefit which he will receive ·from his freedom to give greater · attention to his own farm, but the extent of this benefit is uncertain. All of this demonstrates ·the impossibility of assessing this component by any mathematical calculation, so it is necessary to arrive at a global award taking all the competing factors, including the degree of chance of success or failure, into consideration. The result must be somewhat large because substantial figures are ) involved and any loss would probably have some serious magnitude; such as represented by his weekly loss should he not have accepted redundancy~ This is due ) to his high pre-accident earning capacity. As against this there are some serious · diminishing factors that have been referred to. For this component· then an ._ allowance of $70,000.00 should be made. Consequently the total damages should be assessed at $158,557.40 and after a . deduction of twenty percent for contributory negligence as ef{plained above, the final ) award should be $126,845.92. There is judgment for. the plaintiff against the defendant in the sum of $126,845.92 together with costs including reserve costs if any to be taxed. · -- 16 of 16 --