Cameron v Shanahan [1991] QSC 145

. 1 10 20 30 40 50 REVISED COPIES i ,SLJED Court Repc:-ting B ·,e,:J Date 7 / :!. / 91 :ijiW. '11Hii f,UQl;~! COURT OF QUEENSLAND Gr.!JIL •lliitI,OOIC-T·ION No. 84 of 1988 ~ W• CW.Sf.I'.IGE DEMACK It•~fif#HMW~ , 2 MAY 19 9 1 (Gow.right in this transcript is vested in uh~ Crown. Copies thereof must not be made or sold without the written authority of the Ghief Court Reporter,Court Reporting Bureau.) ~: BERNARD DOUGLAS CAMERON Plaintiff -and- NOEL PATRICK SHANAHAN Defendant JUDGMENT H~S HONOUR: Mr. Cameron was born on 17 October 1960. He was injured in a motor vehicle accident on the morning of 6 0cto~ 1986. On that morning he was travelling to work at th.e Bton Sawmill. ~r. Shanahan was travelling to work at the same time at t;~ Fco:Ln0hant Dam. Both of them were proceeding west from ~&ton along the Peak Downs Highway. The highway had a b-~t~n surface in good condition. Each lane was 3.5 metres Wti~. 'N:t.~~e was a broken centre line and a continuous line &l®g t:he edg~ of the bitumen. It was about 6.30 in the mo~n4ng, and the day was clear and fine. ~ne is some suggestion, in one of the statements that ¥r. G~on has given, that there was some fog but this does not~ to be clearly established on the evidence. ltr. Shanahan intended to turn right from the highway ~nt!o t:be North Eton Road. At that intersection the 10 20 30 40 50 60 60 -Govt. Printer, Old. 1 -- 1 of 12 -- 10 20 30 40 so 60 :g,1'ati:nti·fi.f collided with the rear centre of the Toyota fiour-\fhael drive vehicle that the defendant was driving. 'Ph.e~e are two significant issues of fact in respect of \jll-ioh uhe plaintiff and the defendant are in disagreement. ~ ~~~st of these was whether Mr. Shanahan turned on. the bllc¥fit~icator on the Toyota some distance before he reached o~ ~n"ter-section. The second question of fact is whether ¥or. Shanahan's vehicle was still in the westbound half of uh!= h-ighway at the time of the collision. ~t seemed to me that neither man had a particularly i.e-lia£)le memory of the circumstances leading up to the ac-tual collision. It seemed to me that both of them were a.uuempting to reconstruct what happened. r.,r. Shanahan has given significantly different versions ~a.ut a,sp,ects of the accident. These are found in what he hqe -told t;he police, in what he has said in his answers to ~oo,e.i.:r::QS!atories, and what he has said here in court. :Ntr. Cameron has told Dr. cook things which suggest that he is very significantly reconstructing his evidence. So :fia.r a£ the question about the trafficators is concerned I am satis,fied on the balance of the evidence that Mr. Shanahan d-id not turn them on at any significant distance prior to bhs= ~n~er-s~ction. 'Nie s-ignificant matters seem to me to be that he bhQUBflt he had the road to himself; he was unaware of the ~boaoh of a vehicle behind him and the road ahead was C•lear. He seemed to have some preoccupation with the RO&Silibility of vehicles emerging from North Eton Road, which ~a to be suggested in the evidence as somewhat concealed ~ ea.Re. Also, Mr. Shanahan seemed to draw some comfort .-~. -,.Govt. Printer, Old. -~ ·-:· . 2 10 30 40 50 60 -- 2 of 12 -- 10 20 30 40 50 60 fi~om the fact that he says that when the Toyota was ~'tar-ted, about three quarters of an hour after the q.aoi~nt, the right-hand indicator lights flashed. ~he Toyota had been on its .side following the accident an~ hat'i to be brought upright before the motor was started, ~e it s~ems to me that it is quite possible that in the cour.ss of that, or in getting into the cab, the indicator \jA£ b~ped just as it is possible that in the capsizing of bh~ v.ehicle the indicator was bumped. Consequently, that ~a.ars not seem to me to be a terribly reliable matter. Rooher it seems to me to be significant that Mr. Shanahan dfrd not notice if, while the vehicle was on its side, its infilcator light was flashing, even though he says he left nhe ignition on. ~he substantial damage to the Toyota was quite close to tlh.e ind-icators on the back of the vehicle, and it would seem a fia4rby natural area of interest for the driver of that ~-icJ;e to have looked at some stage well prior to the '-Wl-ic1e being righted. Consequently, I am not satisfied tlha.t Mr. Shanahan turned the trafficator on. Mr. Cameron's ev~<ience was that he did not see any flashing light ind-icating an intention to turn right. So far as the second issue is concerned, Mr. Cameron's av~®nce is to the effect that he saw the Toyota ahead of hdsn t.-r.a:v:elling more slowly than he. That he accelerated and mt;l.v;ad out to overtake it some 60 metres behind it. He says tlhat the Toyota moved across in front of him in such a way tlhat he was unable to move to avoid the accident. r+r. Shanahan's version of the incident was that he was 'tnaMe-lling along in the westbound lane, slowing down quite .,.-0 .... ~ Printer, Qld. 3 10 20 30 40 50 60 -- 3 of 12 -- ) 10 20 30 40 so 60 so¥ d~stance before the intersection, and that he had eiuher just begun to turn or was beginning to turn when he w~ hit rrom behind. He said in his evidence in court that b~ fir.ant right-hand wheel was at or about the centre line, hut a.a,rlier his evidence had been to the effect he was still in uhe westbound lane. It seems to me of the two versions u~ one g~ven by Mr. Cameron is more probable. It was early in u~ mor.ning, it was a clear day, and it seems highly i~~0Eable that a motor cyclist would simply plough into the bq..ok of a vehicle travelling along ahead of it in the ~nb0und lane. However, it is quite probable that a driver of a ~ehicle, intending to turn right, and believing there is no other traffic around him, would swing to the right w~bhout warning when approaching a road into which he wished to tu-r:n. 'Fhe evidence that Mr. Cameron has given also explains how it was that the Toyota continued into ·North Eton Road &fiu&r bhe impact, and turned through some 270 degrees before c~ng to r,est on its side. To do this it needed to have ~ n0r.oherly movement prior to impact and it needed to suooa4n an impact that gave it a rotational force. N-r. ~ing has identified the forces that are involved in such an accident, and I accept his evidence in regard to this. I accept, from his evidence, that although the p~ecise angle of impact cannot be identified the angle must haMe aaen such as to give some rotational impulse to the 'FQMOta, and also to have been enough to have stopped and s•l.~ the motor eye le. Consequently, it would seem, that uhe ~ind of angle that Mr. King suggested in his sketch is 1-:b)ge.J..y • \. -Govt. _Printer, Qld. 4 10 30 40 50 60 -- 4 of 12 -- 10 20 30 40 50 60 Ln the circumstances then I am satisfied that the ~:fienaant was negligent in, firstly, failing to keep a P,~ORer lookout; he admits he did not see the plaintiff qQ:Proach at all. I am satisfied also that he was negligent :i:n :fiad..ling to signal his intention to move to the right. So fiar as contributory negligence is concerned, I am ~'tis,fiied that Mr. Cameron did not keep a proper lookout. Lt seams to me clear enough that Mr. Shanahan's evidence, tmat he slowed down as he approached the intersection, must ~ acGepted. The nature of the corner through which he had to tuun was such that he would have needed to slow his v.ehicle down considerably below road speed. He says that he slowee to 20 kilometres an hour. It seems to me that if Mr. G~ron was keeping a proper lookout he would have noticed this slowing down. He was already aware that the inter.section existed. If he had been keeping a proper look-0ut he would have been put on his alert to the ROs.&~bility that the vehicle was slowing prior to the :i:nuEWSection for the purposes of turning either left or r.~t. It seems to me that a motor cyclist, taking ~Rgble care for his own safety, would note such a thing. I am satisfied that the greater part of the blame for bb,.e a,.ecident lies on Mr. Shanahan, and I apportion liability qg.p.4nst him 60/40. It seems to me that the plaintiff here mus-t bear a significant share of responsibility because of his failure to keep a proper lookout. Mr. Cameron was taken to the Mackay Hospital. He was ~tted there on 6 October and discharged on 5 February 1,a&,7. ~he injuries noted in the report of that Hospital a_oar,d were compound comminuted fracture of a right mid-shaft -rGovt. Printer, Qld. ·,·.•. 5 10 20 30 40 50 60 -- 5 of 12 -- 10 20 30 40 50 60 ~~r; fir.acture of the right lateral tibial plateau; tma,etm-:t:.e of the right proximal fibula. He was initially bnea-ted with skeletal traction in an attempt to correct the ~fioumity of his femur. Several manipulations under general anaesthetic were partially successful. Traction was removed afiter 14 weeks and it was found then that the angulation had ~co~ unacceptable. He was taken to theatre for internal f•i-»ai:t-ion on 27 January 1987. While in hospital he ~~ienced complications with fat embolism and pulmonary eiasolus. He was anticoagulated for three months. He also s~Dfie~ed infection around the tibial plateau where the uraction pin had been inserted. The hospital regards the ma~ter as having been one which responded to antibiotics, but it appears from Doctor Cook's report that infection p.er-s-isted in that area for some time. ~he angle at which the bones had set was still unsatisfactory and Doctor Cook performed surgery in the ~ionaer Valley Hospital on 7 September 1987. Since then Doctor Parker has performed a quadriplasty in Brisbane. rm:-. Cameron also suffered other cuts and abrasions but ~ ae.emed to have healed without any residual difficulty. ~, he does have a significant disability in his right ~. Ra:r-ticularly, Doctor Cook explained, that there is s~ <i,a-:f!or.m-ity in the quadriceps muscle, which means that ~he action of the kneecap on top of the femur is causing wear and tear in that part of the knee compartment. It also has a tethering effect so that he cannot bend his knee through more than 90 degrees. This means that he cannot sgμat and this is a significant disability for a man who had ~nt a~l of his life in labouring occupations. ~ovt ~ e>rinter. Qld. 6 10 30 40 50 60 -- 6 of 12 -- 10 20 30 40 50 60 *· Ga,meron has set out his employment record in B~~bit 6. It appears that most of his experience has been in bhe sawmilling industry. He was working at the Eton Mill ~t uhe time of the accident. He returned to that mill, ~Qoh ay uhen had changed hands. He was taken on as a g:i:;qiil.le-tion foreman and the person in charge of the Canadian ~Gh. Dr. Gook's account of what he understood was involved tn bhait aees not seem to coincide with Mr. Cameron's ~-v1~tion. It seems to me that the full range of work uhe,t. M>r. Cameron had to do as a production supervisor and GanaoQan benchman involved far more bending, lifting and s,_qμpt:'t-:Lng than Dr. Cook understood. Particularly, it :Lnv,olv.ed him in quite serious risk of injury because of his loais o.f m0bili ty and flexibility in his right leg. 'lij:ie manager of the sawmill for the first 12 months that Mr. Gqta&~on was there gave evidence. He thought that ¥r. ~on's experience and skill in breaking-down the logs ~,uJ..a afiief;Fately offset his loss of agility and usefulness ~n b~ ~bliler tasks to which he was put. However, his ~r was the owner of the mill and it seems clear enough bht;l.t tll:i.e brother thought that Mr. Cameron was the "weak l•tnk:" :hn t!he operation of the mill, and that work was ue:mninaued on 25 January 1990. I am satisfied that with his disability Mr. Cameron would he at serious risk in a sawmill unless he could find s.o~ job that kept him away from the need to perform heavy L~fi't-:hng and away from exposure to rotating saws in c~uCUil:'&tances where he was likely to slip. Certainly, he is not, tt seems to me, fit to work on wet logs. 7,'!.1:-f"rinter, Old, ,., .... 7 10 20 30 40 50 60 -- 7 of 12 -- 10 20 30 40 50 60 'Fhe-nea-:fiter, he obtained work as a timber orderman with G~J.:.es Ror-ter & Sons in Mackay. He was unable to continue uo l\SDDOMm that work to the satisfaction of the foreman and he was off work for a period of some six months. He has now gained work as a cabinet-maker's labourer lll.~ing built-in furniture in Mackay. He has been employed :hn uha-t since January this year. Dr. Cook says that he presently has a percentage d.4~ility in his right leg of about 20 to 25 per cent. ~r. Gook e~pects that within 20 years the knee will ~evior,ate to the point where a knee replacement operation w,i·l·l be required. When that happens it will remove the ache &ne. ~a-in and swelling in the knee joint. However, it will not mean that Mr. Cameron will be able to bend his knee any fiunuher because of the way in which the kneecap is tethered. He s~s there is no question of removing the kneecap because its p~es.ence is essential if the knee joint is to be ~:la.aad. If the operation is undertaken the percentage lq~ of fiunction would be between 18 and 20 percentage. ij~~-v.&r, av~n with that there would be restrictions on r,a::. G~:r:.on's ability to lift and perform the kind of tasks bhp,t: a..tie ordinarily performed around sawmills. ~t aaams to me that generally Mr. Cameron's future in u~ v.iOnk force does not lie in active involvement in ~awarilling but rather in the kind of associated activities suah as a timber yard or a furniture manufacturer. Mrs. Coles felt that he could be retrained. He $v~ously has a good eye for timber and skills in un~:r:.standing timber and these may be suitable for some form o.f :r:;etr-a-ining. ~... • ""rinter. Qld. 8 10 30 40 50 60 -- 8 of 12 -- ' 10 ~cia1 damages have been agreed in the amount of ~~5,6-&-8.6-9. Of this amount only $430 attracts interest. I~ nefier-red to the fairly recent High Court decision of W <§ii) R~y. Ltd. v. Gogic (1991) 98 A.L.R. 197. It seems to me that the discussion in that case indicates that where the damages represent out-of-pocket items then a commercial ratie should be allowed. The $430 was spent on doctors aeuween 1-987 and 1989. I do not propose to allow interest :imd-iv-idually on them but rather to allow the commercial rate OYl!>r a ~riod of three years. In view of the particular 10 w w 30 40 ~s uhat were involved I will allow that at 14 per cent. 'l.lhe amount of interest that I allow will be $180. So fiar as past economic loss is concerned schedules ha~ been prepared and were placed before me. These were Sl.ll&laris.ed in Exhibit 15. It was suggested by Mr. Boulton that because :ttr. Gameron had had some periods of unemployment there should he some discounting of that. However, in view of the Wei.I in which the first period of loss of income is c~dcu~a.t:.ed, namely, without any increase in pay between 6 Gct.oaer 19-86 and 22 April 1988, I am satisfied no a.~acounting should be allowed. I shall allow $38,000. s,o fia.r as interest is concerned this particular i tern of loss DUD:.S firom the date of the accident and I will adhere to the naue of 6 per cent that has been used in these courts for 30 40 50 50 gp&ue some time. I will allow interest in the amount of $-10, 260. The plaintiff called his wife to prove that there was an add-itional amount that he received by way of Family Ass~stance Supplement while he was employed. The tenor of w ~ -Govt. Printer, Old. 9 -- 9 of 12 -- ' 10 20 30 ll~ ev,i(ience was that this was around about $110 a week and o~ when he ceased work that supplement ceased. However, ~ e.vi$nce also indicated that the total he received by ~ of unemployment benefits included amounts that were ~ a,eoause he had a family of four children. It does not ~ to rae that it has been clearly demonstrated that that $·110 was not caught-up in some measure in the unemployment b_enef-its that have been paid and consequently I do not P.rQpose to allow any additional sum for Family Assistance S.UQPlement. For the future it appears that he now earns $350 net ~r week. His pre-accident capacity in 1986 was $322 net ~r w,aak at the sawmill. There is no evidence before me of co)fila-rable rates in 1991 but it would seem to me reasonable on uhe evidence to proceed on the basis that he has lost $50 :Bar v{eek in earning capacity. It would seem to me co•onsense that men who are exposed to the risk of working in a sawmill, and who demonstrate skill in that area, will Qe pa~d more than those who work at the bench or in the ti¥~r y;ard. I am satisfied that $50 is a reasonable figure 10 30 40 40 50 to ina-icatte that difference. ~t would seem to me with the plaintiff's present age uhat a woDk-ing life of 30 years is reasonable and this would anoauGe a sum of about $40,000. However, future economic lo.as must not only take into account the actual gap between h~s p~e-accident capacity and his present capacity, it must awsp mak-e some allowance for the time that he will be off ~onk hav~ng his operation some time in the future. It must also make some allowance for his vulnerability in the work fo~ce. It seems to me he is particularly vulnerable and I 50 60 60 -:-<3ovt. Printer, Qld. 10 -- 10 of 12 -- 10 20 30 40 so 60 \i.QU:l.d a•llow a sum of $15,000 to cover that and $5,000 to a~~r his time off for surgery. lqars a,t $,60, 000. I assess future economic 'Phe~e will be medical expenses. It seems likely that h~ w,i~l not need the same degree of medication once he has h~ his OReration in 20 years' time so I will allow a 2.0 ~ar s-pan for recurrent chemist expenses and assess that amount at $1,850. For the operations I will allow the sum of $4,150. One of these operations, namely, the arthroscopy should be undertaken fairly soon. It will cost about $~,150. The knee replacement is 20 years hence and its cost at present is over $9,000, so it seems to me reasonable to a:l.~ow ~he sum of $4,150 to cover those two operations and to a·l•l0.w ~, 000 in all for future chemist, medical and surgical ~nc:1-iture. So fiar as pain, suffering and loss of amenities are concerned, the disability that Mr. Cameron has is a sigpificant one which causes him daily pain. He has very s..e.Mene scarring on his thigh and the knee. He has had a m.1aa,er of trips to the operating theatre, as I have tne.-icated, and he has this significant disability which ~:i:;,e.v.enbs him from squatting. For a person who has spent his L~De in labouring work this is quite a significant &t~ility. It also affects his ability to play with his oh~lduen and generally to run about and enjoy any ~~,a.tion. For these matters I will allow the sum of ~~ 1 000. The pain in the future will increase up to the ao~nt when the operation is had. I will allow $10,000 to GOM&r ~t pain and suffering. -:-Govt. Printer, Old. 11 10 20 30 40 so 60 -- 11 of 12 -- ' 10 20 30 40 50 60 It aeems to me that the argument that is used by the Hd. •.gh Gou:r:t in MBP (SA) Pty. Ltd. v. Gogic does mean that we naArl to ~econsider the award of interest on items for pain, SU-?fi:e~tng and loss of amenity. These are items which do not i:n.,~lv~ out-of-pocket expenses and they are generally • ~ in the value of money today. Consequently, the a•l•J..-~nae of interest at 4 per cent is justified on the ~s of uhe High Court decision. I will allow the sum of $·1, 800 b:y way of interest. H±S HONOUR: So the items then of damages are: sQ.ecia-1 damages, including interest, $15,838.69; past economic loss, including interest, $48,260; future economic los.s $·-60, 000; future medical expenses $6,000; pain suffering and loss of amenities, including interest, $33,800. The toua-1 award then is $163,898.69. H~S H0NOUR: There will be judgment after apportionment :fior $-9-8,339.21. H±S H0NOUR: I order that the defendant pay the plad,nti-f•f' s costs on the District Court scale in respect of a:11 costs incurred after 1 January 1990. -Govt Printer, Qld. .,_:. . 12 10 30 40 50 60 -- 12 of 12 --