Crook v Hayward & Ors [1991] QSC 23

IN THE SUPREME COURT OF OUEENSLAND t~L,~ CIVIL JURISDICTION No. 4267 of 1986 BEFORE MR. JUSTICE DOWSETT - REVISED COPIES .ISSUED-, Court Reporti;ig Bureau I BRISBANE, 11 JANUARY 1991 Date:,;,()~ (Copyright in this transcript is vested in the Crown. Copies thereof must not be made 10 or sold without the written authority of the 10 Chief Court Reporter,Court Reporting Bureau.) 30 40 50 BETWEEN: LESLIE ROY CROOK -and- BRIAN HAYWARD and HELEN HAYWARD -and- BARRY JOHN WILLIAM MOORE -and- FAI GENERAL INSURANCE COMPANY LIMITED -and- SUNCORP INSURANCE & FINANCE JUDGMENT Plaintiff First Defendants Second Defendants First Defendant by election Second Defendant by election HIS HONOUR: The plaintiff was born on 26 September 1938 and is presently 52 years of age. He is married and has four children, two of whom are still living with him. He has, as I find, had a satisfactory work record for most of his life. At least since about 1980 until the accident which is the subject of these proceedings, which occurred on 24 January 1985, he had been active in the swimming pool industry. The exact nature of his employment in that industry varied from time to time and it is a little difficult to say with certainty what he was doing 60 ----~~-+·---------- Govt. Printer, Qld. 1 20 30 40 50 60 -- 1 of 14 -- 10 20 30 40 50 .. . at any particular stage. Prior to the 1983-84 tax year he had been em~loy~d in ·constructing swimming pool~. In the 1983-84 tax year he operated a shop.which sold swimming pool chemicals, al though· only during· what might be called the II swimming pool 9 easori" which starts "in about September and finishes in about May. In ~he 1984-85 tax year until his accident, from about 10 . •' S~ptember or October of 1984, he had ·commenced and operated a business · installing swimming poo.ls for an organisation called Queensland Luxury Pools. He had, I think, installed between 10 and 15, in that time, although he was not paid for a number of them because the person with whom he was directly dealing was in financial difficulty. He himself had great hopes for the f8ture of that relationship, but I think that his hopes were rather too optimistic. 1t is very difficult to ascertain his financial position prioi tb the accident. The evidence satisfies me that he was a 30 person who was accu~tomed to a fairly good lifestyle. He was buying his own home; he had another block of land which he had bought for cash; he owned three cars, all of which were rather advanced in years. He also had two boats, one of which was a small dinghy· style, the other was a half cabin cruiser. He 40 enjoyed fishing and golf. He must have been enjoying an income which was sufficient to finance both the acquisition of these assets and· the range of activities which he followed. In the course of setting up his new business he had borrowed $6,000 from his.bank to buy a bob cat, which is a piece of light earthmoving equipment, and again this bespeaks a person who· had a reasonable business relationship with his bank. His tax records do no't reflect quite so promising a position. However, it is, I think, common knowledge that prior 50 ___ 60_ • _______________________________ _j 60 Govt Printer, Old. 2 -- 2 of 14 -- 10 20 30 40 50 60 to 1985, people who conducted businesses were very often able to obtain additional benefits for themselves through the conduct of those businesses, in effect at the expense of the Commissioner of Taxation. He says that he had done this whilst he was in the pool chemicals business, that being a _business that involved cash receipts which he was able to appropriate 10 from the till. Prior to the pool chemical business, he had been largely involved in installing above-ground pools, and that business, too, yielded a certain amount of cash receipts and that he was able to derive a significant amount of his income, in effect, free of tax. 20 Notwithstanding this attitude towards the Commissioner of Taxation and his tax obligations, I was generally impressed by the plaintiff as a witness, and whatever one may say about the tax avoidance industry that once flourished in this country, I am generally satisfied to accept his evidence as that of a truthful, reliable and hard-working man. It follows that I am not satisfied that his income is accurately reflected in his tax records, but it also follows that I do not accept at face value his assertion as to his likely future income. Prior to entering the swimming . pool industry, he worked in various other areas and had acquired a wide experience in a number of different callings, including that had of forklift driver. Although it cannot be said with any certainty what he would have done between the date of the accident and now had he not been injured, I think it likely that he would have sough~ employment which maximised his capacity to earn, once he came to realize that he would not be successful in his dealings with Queensland Luxury Pools. It may therefore be that the award rates for forklift drivers Govt. Printer, Old. 3 30 40 50 60 -- 3 of 14 -- give some indication of. his loss since the date of the accident. Of course, had he been unsuccessful in the pool operation, .there would ,have been a necessary delay between ceasing his operation there and finding other employment. It would not be correct simply to compensate him on the basis that 10 he would have. been a forklift driver for the whole of that 10 period. 20 30 40 50 60 Documents and calculations .handed to me indicate that the wages for a forklift driver from 24 January to date total ( after. tax) the sum of about $80,000. There are. some challenges to the accuracy of the tax calculations leading to that ,.figure, but if one takes the gross amount of the award, which is in excess of $95,000 and deducts from that about 15 per cent to represent tax, the figure shown is about $80.000. The rate of 15 per cent can be derived roughly by taking the. present tax on the present award of $347.60, the tax rate being $50-odd, which represents, as I say, about 15 per cent. In any event, there has to be some discounting of t;hat amount t;o take account of the contingencies to which I have referred. Taking account of those matters, but also ~eeping in mind the fact that I think the plaintiff is a person who has been able to earn a good income in the past, I fix the award for past economic loss at $72,500. He has received qbout $65,000 in Social Security benefits, and I allow. interest on the difference - that is, on $7,500 - at 6 per cent ~o~ six y~ars-showing $2,700. As to future economic loss, the best starting point for the calculation again seems to. me to be the income for a forklift ,driver, being an occupation in which he has some experienc~, but again,.I.:th:i,nk it is necessary to make some Govt. Printer, Qld. 4 30 40 50 60 -- 4 of 14 -- adjustments to take account of the fact that I am really only specula~ing, althotigh on-the best evidence available. Present gross award rate is $347.60 and after tax that comes back to a figure rather less than $300. To take account of the various contingencies I reduce that to-$250. I was 10 impressed by the plaintiff's evidence as to his future work intention, namely that he would continue until age 65 or beyond if he had the opportunity. I will allow him $250 per week for 13 years on the 5 per cent tables, showing $124,642. 30 40 50 60 As to pain, suffering and loss of amenity, the medical evidence indicates that the plaintiff has, in effect, lost something like 80 per cent of the effective use of his right arm. He no doubt suffered great pain and anxiety at the time of the accident and thereafter. I am also satis£ied that it has been particularly difficult for him because of the previous active life which he led, although he has managed to adapt to performing a wide variety of activities despite his disability, no doubt with great difiiculty~ IJ·fix the award for pain, suffering and loss of ~menity at $4O;ooo and for past loss at $25,000, being part of that $40,000. r· allow interest on the sum of $25,000 at 6 per cent for six years showing a further sum of $9,000. In the course of argument, some attack was made upon the attempts made by the plaintiff to get back to work. For my part, I was greatly impressed by the attempts that he has made. I think that he has done all that reasonably can be expected of him. I give no weight to the proposition that he has in any way failed to discharge his duty to minimise his loss. As to special damages, a schedule has been put before me which shows a total of $10-, 367. 90. -However, of that sum Govt Printer, Qtd. 5 10 20 30 40 50 60 -- 5 of 14 -- 10 20 30 50 60 $6,374. relates to hospital expenses. It_would appear that the relevant hospitals have requested the plaintiff to claim this amount upon the basis of the recently adopted Public Hospitals ( Fees and Charges) Regulations. These provisions were recently discussed by my brother Kneipp in Smith . V. . Day (No. 22 of 1989 in Townsville Registry), His Honour's decision being given on 11 December 1990. the Without pausing to c.onsider the matter further, I will follow, His Honour's reasons which I have perused and which I, with respect, am satisfied to adopt. The effect is that the hospital expenses are not recov_erable by the hospitals from the plaintiff. for the reasons given by His Honour. . Therefore the plaintiff can't recover those sums from the defendants. damages as agreed are $3,993. This means that the special The only significant amount which has been actually incurred by the plaintiff is travelling expenses totalling $1,500 and I will allow interest on $1,500 at 6 per cent per annum for. six .years, which shows $540. The total award will. therefore be: Pain, suffering and loss of amenity Interest on $25,000 at 6 per cent per annum for six years Agreed special damages Interest on $1,500 at 6 per cent per annum for six years Past economic loss Interest on $7,500 at 6 per cent per annum for six years Future economic loss $40,000.00 $9,000.00 $3,993.90 $540.00 $72,500.00 $2,700.00 $124,642.00 Total $253,375.90 ---------~--------------'-----'------~ Govt. Printer. Old. 6 10 20 30 40 50 60 -- 6 of 14 -- 10 30 40 50 I turn to the issue of liability. In the course of his employment, the pla1ntiff and his son had gone to a property to the west of Brisbane on the afternoon in question for the purpose of- quoting for a job. They had gone in company with the property owner in a motor vehicle owned by him. After spending a couple of hours on the property, they found themselves in the middle of a very severe storm and took shelter in a caravan on the property. It seems that they may have been prepared for some such occurrence because they had access to a significant quantity of beer, and I find that the plaintiff drank four or five cans of beer in the course of a couple of hours. They attempted to leave the property in a number of ways, but were unsuccessful. Eventually, in the evening, the plaintiff and his son resolved to walk from where they were on the property to the·main road with a view to telephoning for assistance. I accept that the plan for assistance was not fully formulated, but it involved either calling the plaintiff's wife so that she could come and pick them up or alternatively, calling another friend who might be able to assist in extracting the vehicle in which they had been travelling from a bog in which it had become caught. After a walk which lasted for some two hours, they arrived at the main road to find that a service station for which they had been aiming was closed. The road is the Warrego Highway, the main road between Brisbane and Toowoomba. At the point in question it is a divided road with two lanes travelling in each direction~ They entered the Warrego Highway by way of a road called Niemyer's Road and finding the garage shut, they located a shop 60 1-------4--------·~~--------------------------------~ Govt. Printer, Qld. 7 10 20 30 40 50 60 -- 7 of 14 -- 10 20 30 40 50 60 about a kilometre east-bound. The shop had a telephone outside of it and was·directly opposite a school.· These buildings can be seen 1 in the "photograph which is Exhibit 30, as can the road way. The plaintiff· and his son then set out to walk to the shop, travelJ:ing along the left-hand side of the eastern-bound 10 carriageway. The circumstances surrounding this walk will depend upon my view as to the credit of the various witnesses. It is the plaintiff's account, largely supported by the evidence of his son, that they proceeded in single file east-bound, keeping two or three feet to the left of the continuous white line which marks the left-hand margin of the bitumen surfacg. The vehicle driven by the defendant, which was a prime mover ~ragging a trailer loaded with pigs, approached from the west and struck the plaintiff whilst he was walking along the- side of the road, causing him the injury of which he now compl.ain:s. He, has, of course, no recollection thereafter of what happened and~the recollection of his son is•also rather vague. He ·recalls finding his father on the ground,- thinking that he was dead, chasing the truck, which stopped some hundreds of yards up the road, and then coming back. I have already said that I found the plaintiff to be an impressive 1 witness, and in general those observations also apply to his evidence a.s to:liability~ I also saw no reason to doubt the 0 :veraci ty or general reliability bf the evidence of Mr. Crook-jnr. The defendant '-s account was somewhat different. He said that he was travelling in an' east-bound direction, travelling Govt. Printer, Qld. 8 30 40 50 60 -- 8 of 14 -- travelling at 90 km/h or perhaps a little-less. As he approached what turned out to be the scene of the accident, a vehicle approached from the other direction and dipped its lights, causing him to dip his. He says that when he restored his high beam, he saw one 10 person walking on the left-hand side of the roadway, or perhaps standing there with one foot on the white line and the other foot to the right of it, that is, on the bitumen road surface. He says that he swerved to the right and virtually instantaneously, noticed that there was a second person standing further to the north of the road, that is, away from the trafficable surface. He heard a bump at the front of his vehicle, and from that deduced that he had struck somebody. It is true that this account is substantially the account 10 20 30 that he gave to a police officer at the scene and thereafter, 30 but the impression that I had was that his recollection was 40 50 60 little more than a blur and that he had sought to reconstruct the incident in his mind, no doubt, for the purposes of answer~ng the police officer's queries at the scene. I did not find him to be, in generai, a particularly impressive witness, although I do not mean to say that he was deliberately lying. I think, no doubt, that he has feelings of remorse relating to the incident as much as anything else. It is said that there are certain objective facts which tend to support the defendant's case. In particular, it is pointed out that there were no marks on the shoulder of the road, although it had been raining, and one might well expect that either the gravel or the grass would have shown such markings had the vehicle left the road. Govt. Printer, Old. 9 40 50 60 -- 9 of 14 -- .. It is said .that the plaintiff was found in a position after the 1accident which. supports the defendant's account rather than that of the plaintiff and his son. It is also said that the vehicle had suffered some damage which could be said' to be attributable to the accident occurring in the way 10 that the defendant said it did. 20 30 40 50 I'• do not find any of these matters particularly persuasive; It is true that a police officer searched the verge by torchlight following the incident and found no evidence of a vehicle leaving the road surface. However photographs of a .similar vehicle indicate that some parts of the cab on the left-hand side protrude beyond the wheel, and it may well be that they.could have protruded beyond the edge of the road, although the tyre itself may not have left the road surface. Similarly, there is a significant distance between the front of .. the wheel and the front of the motor vehicle and it again would be possible, if the vehicle veered to the left, for a significant part of the cab to protrude past the edge of the road surface: without the tyre actually leaving the surface. Thus, I do not find it particularly persuasive that no such marks had been left. Evidence as to where the plaintiff was found after the accident is somewhat equivocal. His son's evidence was that he was -found, as I understood it, on the grass to the side of the road. However he said ~o the-defendant that his father was lying back on the roadway; The defendant says that when he returned h~ found an ambulance bearer from a passing ambulance attending to the plaintiff whilst he was lying on the roadway. On the other hand;- the police officer says that he saw a --~60~-t--·--·--···-·--·-·--------------------------------------' Govt. Printer, Qld 10 10 30 40 50 60 -- 10 of 14 -- pile of dressings ~ying on the grass to the side of the road, suggesting that medical attention had been given in that area. It is, I think, difficult .to conclude with any certainty where the plaintiff came to· rest immediately after. the accident. It is probably also impossible to exclude the possibility that he 10 moved or was moved after the accident. In any event, I think 10 that it would be very dangerous to speculate as to how the accident happened from any evidence as to where he ended up following the incident. The defendant says that he found damage to the left-hand side of the front of his motor vehicle immediately after the accident and that such damage was not there prior to the accident. The inference is therefore open that it was caused in the accident. It is not clear to me when the defendant last inspected 30 the vehicle to see if that damage was there or upon what observation prior to the accident he relies as establishing that it was not there. The damage is high up and, it is said, would be consistent with the vehicle striking the_arm of a person who had his arm extended in .the well-recognised 20 30 40 hitchhiking gesture. This is demonstrated in_Exhibit 35. The 0 4 o so defendant says that the plaintiff was apparently hitchhiking in this way immediately prior to the collision. The plaintiff denies this. I find myself unpersuaded that I should accept the defendant's evidence as to the state of this vehicle prior to the accident, if to do so is to necessarily reject the plaintiff's evidence. All in all, and giving this evidence such weight as I think it can bear, I find myself still persuaded that I prefer the evidence of the plaintiff as to the circumstances leading up to the accident. The plaintiff 50 f---~6~0---+-----------------------------------------~ 60 Govt. Printer, Old. 11 -- 11 of 14 -- 10 20 30 40 50 60 has. 12:r::ovy_n negligence in the defendant in. that . the defendant failed to keep a proper lookout. Had he done so, he would have seen the plair1tiff in.time to take evasive action. The ~vidence of the plaintiff was that he was wearing a white T~shirt at the time. The. area was not well lit and there was ,some ra_in on that night,. but the rain by that stage was relati~ely light. The qefendant would, I think, have seen a person in a white shirt walking to the left of the road had he looked. I suspect that his attention was distracted by the oncoming vehicle, but one cannot say that with any certainty. I can see no justification for his not seeing the plaintiff earlier than he did. In those circumstances I consider that he failed to keep a prop~r look-out. I think that he was driving very close to the left-hand side of the road and that it is possible that he deviated further to the left, although I am not sure about that. In fact, what he should have done was to steer to the right once he became aware of the pedestrians on the .side of the road. There was no other traffic in either east-bour1d lane which would have prevented him from doing this, and I think that all in all the accident was caused by his failure to keep a proper look-out. I am satisfied that the plaintiff was walking to the left of the white line as he alleged. The question arises as to contributory negligence. As I understand it, the duty upon a plaintiff is to take reasonable care for his own safety. In. the present circumstances, the plaintiff had found himself, in effect, stranded in a paddock following heavy rain. It was quite reasonable. for him and his son to take steps to return home. They .had no method of transport open to them except to walk. Govt. Printer, Qld. 12 10 20 30 40 50 60 -- 12 of 14 -- 10 20 30 40 They walked to the highway with the intention of there using a telephone. They identified a telephone further up the road in an easterly direction and commenced to walk there, keeping to the left of the white line which marked the edge of the carriageway. Exhibit 30 and the other evidence makes it clear that the surface falls away from the edge of the bitumen. There is a gully to the left of the road between the white line and the long grass. be expected that It had been raining heavily and it could the grass would be wet. In those circumstances it was reasonable that the plaintiff should have chosen to keep to the high ground, but to the left of the white line. There was nothing to obstruct the view of an on-coming vehicle, and I cannot see that there was anything unreasonable about this course of conduct. It was suggested that he should have crossed to the other side of the road and walked up the right-hand edge of the western-bound lanes. This submission relied upon a rule that pedestrians walking on a road surface should keep to the right. There seem to be two different rationales for this rule, one that it gives ·on-coming drivers the opportunity of identifying the light-coloured faces of pedestrians and the second that it means that pedestrians can view on-coming traffic. There is much to be said for this rule in many circumstances, but I do not think that reasonable care for his own safety should have compelled the plaintiff to follow it in this case. It would firstly have required him to 10 20 30 40 50 50 60 cross the road, a main highway, with some risk associated thereto, though it may be in·ferred that he would have· had reasonably early notice of any on-coming traffic. More importantly, he did not know what was on the other side of the road, whether there was sufficient room for a pedestrian Govt. Printer, Old. 13 60 -- 13 of 14 -- to proceed there. In those circumstances it was a sensible thing for him to do to stick to the side that he was on. Although there is obviously some risk associated with walking up the edge of a major road, albeit off the road surface, I think that the risk was not so great as to compel him to change 10 sides. I certainly do not think it was so great as to deter 10 him from walking along the road at all. I do not consider that contributory negligence has been made out. 20 30 40 50 60 There will be judgment for the plaintiff against the defendants by election in the sum of $253,375.90, with costs. Govt. Printer, Qld. 14 30 40 50 60 -- 14 of 14 --