Day v Moroney & Anor [1993] QSC 97

TRANS (Copyright in this transcript is vested in the Crown. Copies thereof must not be m:3 de or sold without the ViTitten authority of the Director, State Heporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILLIAMS J No 30 of 1992 TERRY BRETT DAY Plaintiff and STANLEY EDG~~ KEITH MORONEY First defendant and THE NOMINAL DEFENDANT (QUEENSLAND) Third party CAIRNS .. DATE 23/03/93 .. JUDGMENT 1 ./' / rul' # ~~F ' , JUDG1>1ENT 1 -- 1 of 17 -- •:• ·- r -- 'J /- ~~ . ' .) " ._) ace idcnt c:n e scmc¥:; o.t ;_:m.: t.::al and J ic:bi 1 i ty is seriously in ~ ssue. It j s, tht:::refore, unfortunate that the critical witnesses had to ende<,vcur to rEmE::rJ:er, after a lapse of aJmost exactly seven years, what occurred in the space of one or two seconds late on the afternoon of 9 March 1986. Before dealing with the evidence I should say that the plaintiff was the pillion passenger on a Yamaha motorcycle which, at the time, v1as being driven by Debra Jane Yates. That motorcycle came into collision with a motor vehicle owned and driven by the defendant Moroney. The plaintiff brought his action only against Moroney alleging that the defendant was guilty of negligence which was the sole cause of the collision. The motorcycle in question was an unregistered vehicle and in consequence the defendant joined The Nominal Defendant, (Queensland) as third party alleging that negligence on the part of Miss Yates contributed to the collision. Initially only The Nominal Defendant, but at the outset of the trial also the defendant, alleged that the plaintiff was guilty of contributory negligence in that he grabbed the handle bar of the motorcycle pulling it to the right so as to cause the motorcycle to go out of control immediately before the impact. It is in the light of those pleadings that the issues of liability have to be determined. JUDGMENT 2 10 20 30 50 50 -- 2 of 17 -- ? j a .i. L J. t f '"' si } (-) .J " d J;as no 1ecollecti on f the ;~ cc t . defendant's v jclc, a Mrs Eendcn, but she also has no detailed recall of tte incident. In consequence, the relevant evidence ccmes fro~ the defendant and from Mi.ss Yates. Of the two I have concluded that I should accept and act on the evidence of Miss Yates. There were numerous inconsistencies in the evidence given by Moroney; inconsistencies in the course of his evidence given before me and inconsistencies between that evidence and answers to interrogatories given in the course of preparation for trial. I found Miss Yates to be an impressive witness who, in my view, was doing her best. to recall accurately what happened so many years ago. In light of those broad findings on credibility I find that the motor vehicle being driven by Moroney over a rough country road was following the tracks left by vehicles which tended to follow a particular path when traversing this section of the roadway. Unfortunately for him those tracks took him on to the incorrect side of the roadway as he approached a crest. There is no doubt on all the evidence that it would have been possible for him to have driven further to his left at that point so that he would have been on his correct side of an imaginary centre line but, following what is often a custom on such roads, he took the path designated by the tracks and that placed him on his incorrect side of the roadway as he approached the crest in question. JUDGMENT 3 10 20 30 40 50 60 -- 3 of 17 -- ·.~~JiL 1n ~Pc· ~cnce as to the speed 2t ·~ ,ravclli~J as e ~Jpro&ched the crest. I accept p~ce ~hen ~csotintjng a creekbed shortly before the crest of the hill where the ~ncident occurred. But I am satisfied that he was travelling at least at 20 kilometres per ho~r, the speed given by Miss Yates in her evidence, as he approached the crest. Given the position of his vehicle there was no room for a motorcycle to travel between the driver's side of his vehicle and the trees on that side of the roadway with sa:Jit~y. Miss Yates was very experienced in riding motorcycles and was the holder of a licence for riding motorcycles. She was, however, not familiar with this particular stretch of roadway. On her own evidence she approached the crest at about 40 to 50 kilometres per hour. She was travelling in one of the tracks that the defendant's vehicle was travelling in. She was travelling in the track furthest to the left-hand side of the roadway in her direction of travel. When she saw Moroney's car for the first time the vehicles were, on her estimate under cross-examination, 15 to 20 metres apart. She said, and I accept this evidence, that the whole incident from when she first saw the vehicle to impact took no more than one to two seconds. I further accept her evidence when she says that there was no doubt there was going to be a collision from the first moment she saw the car. I quote, from her evidence in chief, "As I came over the hill I saw a car directly in front of us and knew that we were going to run into it." JUDGMENT 4 10 20 30 50 to -- 4 of 17 -- I aJ o r er S GY2111iJJotion that she cu]d have trind a~d s, ~n f et, trying, having seen the car, to ~s bet en t o d t .. e t 1 es to her left. She said, "I den' t knov< if I vwuld' ve clear cd the car or if I vwuld' ve hit the trees that i·cE:re there." I am satisfied that ultimately she lost control of the motorcycle, primarily because she was trying to steer to the left out of the rut of the track in which she vvas travelling. I will say more about that in a moment. Given those findings it follows, in my view, that the defendant was guilty of negligence in travelling on the incorrect side of the carriageway, but I am also satisfied that in travelling at a speed of 40 to 50 kilometres per hour approaching that crest Miss Yates was guilty of negligence. Before dealing further with the question of apportionment I turn to the question whether or not the plaintiff was guilty of contributory negligence. JUDGMENT 5 10 20 30 40 50 50 -- 5 of 17 -- "I :_,'ccc:::-cd the bike 1t:ft to try and avoid the car and L~e l~st thing I re~e~ber was Terry's hand coming o',''"'r .,Y:J h;c~r:a and l:::eir~g on top of my hand, on top of t~e throttle and the brake." She v:ent on to say that "straightened the handlebar slightly". She described it as a placement, not a pull. Under cress examination this question and answer occurred: "By the time Terry had placed his hand on your hand you were in the course of the left hand wheel track?-- I was trying to leave the left hand wheel track." And then a little later on this question and answer: "You see, did you believe you maintained control of the bike until Terry had put his hand on the handlebar, did you believe the bike was going to remain upright?-- I was hoping the bike was going to remain up upright but the wheel track that I was in was quite deep." 10 20 Then in re-examination she agreed that the wheel track she was 30 riding in was quite deep and that there was a danger when one was trying to leave such a depression. When asked what sort of danger she replied: "If it's a very deep wheel track it can grab hold of the front wheel of the bike, sort of jog it, make it extremely far to the left or to the right." 40 She agreed that that could definitely cause one to lose control of the bike and "cause it to turn sideways". In the circumstances I am not satisfied that the act of the plaintiff in placing his hand on Miss Yates' hand and on the 50 handlebar as referred to in the evidence caused the bike to slide or fall or swerve. The movements of the bike in sliding and swerving were caused, as I find on the evidence, by the endeavors of Miss Yates to steer the bike out of the rut to 60 JUDGMENT SA -- 6 of 17 -- jn n to avoid the car. It follows that in tLcce ci:c tanccs there is no contributory negligence on the part of the plaintiff in acting as he did. I should say that on the question of contributory negligence I was referred to the unreported decision of Mr Justice Demack 10 in Jackson v. Begg, Rockhampton No 5 of 1982, judgment delivered 10 October 1984. That case can be distinguished because there the plaintiff, who grabbed the steering wheel of the motor vehicle in which she was a passenger, on the Judge's 20 findings, failed to take reasonable care for her own safety because she had ample time, on the evidence, to look at the speedo and make a deliberate decision. His Honour said, "The plaintiff's response was very extreme and went far beyond any reasonable reaction to the defendant's driving." That can be 30 contrasted with the situation in which the plaintiff acted here, and I find nothing in that decision which would cause me to find that the plaintiff's conduct here amounted to contributory negligence. 40 I was also referred to the decision of the South Australian Full Court in Shelley v. Szelley (1971) South Australian State Reports 430. There, in the circumstances of that case, a passenger who attempted to seize the steering wheel of a motor vehicle out of control was found to be not guilty of 50 contributory negligence. Generally the members of the Full Court applied the principle that allowance should be made for the conduct of a person suddenly and without warning thrown into a critical position. Conduct of persons acting in a sudden emergency is to be judged in the ligbt of the emergency 60 JUDGMENT 6 -- 7 of 17 -- ' n r If it -~as necessary for me to do so I ~G lJ l:avc applied that principle here, but as I have found on ~ 1 8 facts that the plaintiff's conduct was not a cause of what ored. t!1ere is no need for me to do so. On the findings I have made I am satisfied that the principal 10 cause of the collision was the fact the defendant was driving en the wrong side of the carriageway. In the circumstances I am satisfied that as between the defendant and the third party, liability should be apportioned 75 per cent against the 20 defendant and 25 percent against the third party. That means, of course, the plaintiff is entitled to recover 100 percent from the defendant who in turn is entitled to recover 25 percent from the third party. 30I now turn to the question of quantum. The plaintiff was conveyed to the Atherton Hospital where it was noted that he had fractures of the 3rd, 8th and 9th left ribs with left lobe pulmonary contusion and with haemo- 40 pneumothorax. He also had a f+actured midshaft of the left femur and a closed head injury. He was transferred immediately to the Cairns Base Hospital for further treatment. It was noted that he had a head injury of moderate severity and was confused. He was treated conservatively in the 50 Intensive Care Unit for a period of time. On 14 March 1986 he underwent an operation for the fixation of the fracture to the left femur and Kuntschner nail was inserted. He was able to be nursed in an ordinary ward from 17 March 1986. He received extensive physiotherapy for his pneumonia and was ultimately JUDGMENT 7 -- 8 of 17 -- dj L t ); e C j 1 ;, s Ho tal en 27 March 1986. further treatment at the Atherton tal, ~ rticuJarly physiotherapy as is detailed in E~hibit 3 .. ~0 Dr Morris, an orthopaedic surgeon, has examined the plaintiff on a nu1~ber of occasions. His report of 29 November 1990 was Exhibit 5 and that of 5 February 1992, Exhibit 6. In hisreport, Exhibit 5, he expressed the following opinion: "The disability relating to his left leg is veryminor and I would put it at less than 5 percent which will improve once he has his K-nail removed. The 20 cost of such an operation would be in the vicinity of $2,000 and would require him being off work. He has very few symptoms now from the fractures of his ribs and lung injury." He also noted that the plaintiff had a pre-existing spondylolisthesis and expressed the view that the accident may have produced some aggravation of that condition. However, 30 that does not seem to be a matter of major significance. In his later report, Exhibit 6, he said: "Terry Day has recovered very well from his motorcycle accident. He had serious injuries including a hemiparesis and a fracture to his left femur. The fracture to hi$ left femur really has recovered very well. He has excellent musculaturearound it and has no problems with his knee. He would improve if the femoral nail was removed but he feels reluctant to have this done as he does not want to take two weeks off lying around. There has beenimprovement in the function of the left leg since I last saw him and I would put the disability to his left leg at less than it was before which means it is more of a nuisance value than anything else. The hemiparesis also has improved very markedly and isreally now not causing him any problems." As I have already suggested the head injury was the more JUDGMENT 8 40 50 50 -- 9 of 17 -- ~~u393 ~erJ.Gvs conseque~ce of the accident so far as the pl i~tJff was concerned. 0 20 30 40 50 JUDGMENT 9 -- 10 of 17 -- Dr Lee Atkinson, a neurosurgeon, has given two medical rcpo1 s in ~elation to the plaintiff's condition. The first of 22 November 1990 was Exhibit 7 and that of 27 February 1992 Exhibit 8. In his first report the following relevant observations and conclusions were expressed: "1. Mr Terry Day suffered a severe closed head injury inthe accident on 9 March 1986. 2. There was a retrograde traumatic amnesia of 12 hours duration and a post traumatic amnesia of about three weeks duration indicating a very severe closed head injury. 10 3. It is reported that Mr Terry Day initially had a right-sided hemiplegia which gradually improved. This2o would indicate that he suffered cerebral oedema and cerebral contusions. 4. As a result of the organic brain damage he is at risk from epilepsy in the future. He has not suffered any epileptic turns to date and is not taking any anti-convulsant drugs. I consider there is a risk of epilepsy developing in the future in the order of 5 per cent. 5. On account of the organic brain damage he did have difficulty with his speech and he continues to beaware of some fluctuating slurring of his speech. When he is tired this appears to be more of a problem. After this period of time I would not expect much inthe way of further improvement. I expect thisdisability to continue to cause some minor frustration. 3C 6. As a result of the organic brain damage he had a right40hemiplegia which required rehabilitation. He is a highly motivated and highly intelligent young man who has committed himself to rehabilitation through his gym work. Still, this very competitive young man who has competed in the state swimming titles and who has a record highly competitive squash involvement is still aware of difficulties with his balance, a slowing down of his right-sided movements and difficulties with eye/hand coordination. Again, after this period of time I would not expect much in the way 50 of further improvement. 60 JUDGMENT 10 -- 11 of 17 -- 7. As a :res11lt of the organic l::rajn rj<.-:~:~;L!ge tL ... _:Il~ ~-:2s !~>~~ n some deterioration in his cog~iti~e fu~cticn particularly affecting his confider:ce ;o,:d his ~:'c-ru:r.v. B>?cause of memory deficits he failed i- o Le z,])J e to cope with a position running in an indeperdent dental technici:ms office. It appears t}-;at tl:e blu:1ting of his cognitive functions may well in~erfere with hisfuture employment expectations as a dental technicJan. 8. In conclusion, I would not expect further neurological , 0 improvement in this young man's case after this periodof time. He presents as an alert, intelligent, highlymotivated young adult, however, on account of his injuries there appears to have been some blunting of his cognitive function and some impairment of his physical function particularly on the right side interfering with his previous levels of expertise. The injuries have interfered with his sporting life. They have reduced his confidence levels. The injuries have probably interfered with his employment 20 expectations." In his later report Dr Atkinson reviewed the position. I will not repeat matters which I have already quoted from his earlier report. Because by the later date he had not suffered any epilepsy the Doctor considered that the risk of epilepsy developing in the future had lessened to the order of 3 per cent. I quote the following expressions of opinion which take the earlier findings somewhat further: "4. At the :time of the accident he had a right-sided hemiplegia and this has completely recovered. He has been very committed to an exercise programme. 5. He notes that he had difficulty with his speech in the early phase of recovery and this also appears to have completely resolved. 6. As a result of his organic brain damage he continues to have some impairment of short and longterm memory and there is some associated loss of confidence. The problem has interfered with his employment and with his promotion. 7. In conclusion I consider that as a result of theorganic brain damage this man has probably suffered a maximum 10 per cent permanent impairment of the whole person as a result of blunting of complex integrated cerebral function. He has otherwise made a remarkable recovery with respect to his nervous system. I would not expect the injuries to interfere with his normal life expectation." JUDGMENT 11 30 so -- 12 of 17 -- 230393 Those findings of Dr Atkinson are largely confirmed L; findings made by Mrs Field, a clinical neuro-psycholGsjst, in her report dated 8 February 1992. I will not incorporate her opinions in my reasons. It is sufficient to say that I accept her findings as stated on page 6 and 7 of her report. Indeed, it should be said that there was no challenge at all to the medical opinions contained in those reports, the reports were tendered by consent and, as was conceded by defence counsel in the course of address, there is no doubt that the plaintiff had been ''devastated by a head injury". JUDGMENT 12 ~0 20 40 50 60 -- 13 of 17 -- Dr Atk:i.nson, as to t:he p.1c-i.ntifi's dis.~:!..-iJ.it: cS ;,red cS ~o t:G way in which ~e h~d work to ov0r~o~e i~ern. The plaintiff's parents g~ve evidence as to the fSrscnality change they had observed. It appears he is new short tempered. He is not as proficient as he was at sport and he has a significant memory deficit. Those matters were also confirmed by the two dental technicians by whom he has been employed since the accident. One is his uncle; the other is a person who became a close friend. They both speak of a marked personality change. They confirm the existence of a speech impediment for a period of time. Mr Griffin speaks of lack of coordination that he noted when the plaintiff endeavored to play squash again. Mr Griffin also co~mented on the plaintiff's inability to communicate, particularly in the vJOrk environment, which is having an effect on his promotional prospects. Both referred to the memory deficit. I accept Mr Griffin's evidence that the plaintiff is still a most talented dental technician but that his_greatest hurdle is in relation to his memory loss and his inability to communicate with others. The plaintiff obtained awards with respect to his course as a dental technician at TAFE College which he had completed just before the accident. He was clearly a very able man and clearly he still has technical skills. The evidence establishes that he was a popular young man and had displayed leadership qualities both at school and in the sporting area. JUDGMENT 13 ·o 20 30 40 50 60 -- 14 of 17 -- 230393 He also had psrticul r that both his uncle and hjs friend c cd j_, tL. f and he had, therefore, opportunities net avAjl~b]e to ot~. rs seeking employment in ttat area. I <::rn sbtisf.ied that he \·611 be able to hold down a job as a dental t J:i.cio:J, ~0 particularly while he is able to remain jn the employ~ent of a personal friend. However, it should be noted that if he was no longer able to keep such employment and was thrown on the open labour market as a dental technician, then his personality problems may make it extremely difficult for him either to conduct his own business or to work in a competitive area. He is currently earning $393 per week nett. If he was a supervisor he would be currently earning $671 per week nett. The evidence supports the proposition, which I accept, that but for his personality and memory deficits he would now be working as a supervisor and earning at least at that level. That means at the current time his nett loss is of the order of $278 per week. That loss would continue over a period of some 35 years. Of course, in .calculating future economic loss one has to use the discount tables. A nett loss of $278 per week does not truly reflect the plaintiff's loss because I am satisfied that, but for the accident, he would have been able to go much further in his chosen field. He would either have been able to establish his own business or would have been able to earn at a much higher level given his talents. In consequence, that nett loss of $278 per week should be looked at as a minimum figure. JUDGMENT 14 20 30 40 50 60 -- 15 of 17 -- 230393 the various v j ci.ss i tt;dE-s of Li · •'. seems to rr.e that the cL;scc·.::'ltJ!'9 )o•: t::e vJ_cj:::situdes uf life c3n be offset against the real prcbabi.Jity tl:at the plajntiff would have earned in future yc2rs significantly in excess of 10 the supervisor's level which has bsen adopted to calculate the current nett loss of $278 per week. Therefore future economic loss ought to be calculated on the basis of a loss about that level without any further discounting. So far as pain and suffering is concerned, because of the brain injury, the plaintiff cannot remember anything of his suffering immediately after the accident and that is a matter that must be taken into account. But he is aware of his current deficits and that, of course, again is something which must be brought into account. He still has pain in his leg at the site of the nail and that will be removed at some time in the future. JUDG1'-1ENT 15 20 30 40 50 60 -- 16 of 17 -- 230393 The cn1y he s of d :712<::;e that I lE:d to s~·ess v.'(:' t? f<Yc pain and suffering and less of ;,;;u:::nit e.s and future ,·, c 02:1ic loss. All other heads of dama,;e v;en:: 'Lbe subject of agreement. The assessment of damages can therefore be s~~marised as foJlcws: Pain and suffering and loss of amenities Past economic loss Future economic loss Griffith v. Kerkemeyer factor Special damages Cost of future surgery Interest on specials and Griffith v. Kerkemeyer factor Interest on past economic loss Interest on past pain and suffering That gives a total of $ 60 1 000 7 1 390 250 1 000 1,876 4 1 620 2,000 1,500 2,217 2,800 $332,403 There will, therefore, be judgment for the plaintiff against the defendant for $332,403 with costs to be taxed. '0 20 30 In the third party proceedings there will be judgment for the 40 defendant against the third party for $83,100.75 plus one quarter of the tax costs payable by the defendant to the plaintiff. I further order that the third party pay the defendant's tax costs of the third party proceedings. JUDGMENT 16 50 60 -- 17 of 17 --