Breen v Nominal Defendant (Queensland) [1990] QSC 48

10 20 30 40 50 60 IN THE SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION No. W206 of 1986 BEFORE MR. JUSTICE DOWSETT \ f'lEVISED CCP\.ES -ISSUED BRISBANE, 13 MARCH 1990 \ Court P..;;p·Jrtin2 r..ureau \ r,~,:"• oU> / 3 I q o (Copyright in this transcript is-ve-s'ted. 'In the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) BETWEEN: WAYNE DAVID BREEN -and- THE NOMINAL DEFENDANT (Queensland) JUDGMENT Plaintiff Defendant BIS HONOUR: The plaintiff was injured in a motor accident which occurred on 4 August 1983. He was born on 10 July 1958 so that he was, at the time of the accident, 28 years of age and is presently 31. The trial has been marked in general by the unsatisfactory nature of the plaintiff's evidence. I do not find it easy to say much about the sort of person that he probably was prior to the accident. He had a history of motor vehicle accidents and significant head injuries associated with- psychiatric disturbance.· A reference --to · a number of the exhibits is sufficient to demonstrate this point. I refer particularly to Exhibits 26 and 29. Exhibit 26 is the report of a psychological assessment carried out -Govt. Printer, Qld. .1 10 20 30 40 50 60 -- 1 of 13 -- 10 20 30 apparently in July of 1981. The relevant aspects are as follows - "There was evidence ... of a significant reduction in non-verbal skills and in memory function. On physiomotor and physiographic tasks, performance was reduced. This was noticeable on the more complex tasks Consistent with the foregoing he demonstrated a mild to moderate reduction in visual memory. There was also an associated r. frontal type difficulty with non-verbal planning ability The deficits noted would be consistent with Wayne's reported difficulty in the work situation following HI (presumably head injury) i.e., he found it necessary to obtain a less demanding job (he could no longer work on engines; he found this too difficult). In his work as a truck driver he reports getting "mixed up" with the paperwork involved. He also reported memory problems and described strategies he has developed to overcome same. It seems others have noticed and commentedon his nmestic deficit. It is his impression that he has .. changed. in some ways following the HI and. that he can no longer do things as well as before. In conclusion, Wayne demonstrated mild residual r. frontal and bilateral temporal lobe dysfunction. It is likely that these factors and his concern related thereto may have contributed in part to current emotional presentation." In Exhibit 29, a report from Dr. William Douglas, a physician, the following relevant passages appear. The 10 20 30 40 40 50 evidence indicated that this report was dated 2 October 1980. The date is not clear on the exhibit. This report related to an examination following a motor vehicle accident in 1977 which resulted in a fracture of the mandible with displacement of the jaw and some abrasions to the right side of the head 7 suggesting possible head injury. The relevant passages are as follows - "Mr. Breen cannot recall the accident and the last thing that he can remember is being in the caravan on the day of the accident, while the first thing hecan recall following the accident is being in hospital 50 60 60 -Govt. Printer, Old. 2 -- 2 of 13 -- ',,,-( 10 20 30 40 50 60 If Mr. Breen was not knocked unconscious, one can only ascribe his memory impairment to concussion and to the effects of urgent surgery and shock "He also complains of feeling generally unwell and tired and to use his own words "his head does not feel right". Although he is notgetting headaches all the time, he often feels shaky but he does get headaches about once every three weeks He also claims that since the accident he's had difficulty in concentrating and tends to forget recent things which also interfere4with his job. Mr. Breen further states that since the accident he's been depressed particularly when he's at home at night, he's not depressed when he's working. He says he's fed up with living and that "living is too much trouble." ... His employment record is poor and it has been terminated on several occasions. His headaches and loss of memory are much more difficult to assess in relationship to the accident in May 1977. You will recall that since then he had a neck injury.in.another motor.vehicle accident and often complains .of irritability and depression. Headaches, in my opinion, are generally related to contraction and tension in the neck muscles, and anxiety and discontent which he describes are probably responsible for his frequent headaches. The neck injury in the accident in 1978 may also be a factor here. I have no explanation for his memory lapses but from my experience, anyone who is depressed and anxious for any reason frequently has interference with the memory processes. -Govt. Printer, Old. 3 _10 20 30 40 50 60 -- 3 of 13 -- 10 20 30 40 50 60 As mentioned earlier, there was no mention of any head injury recorded in the accident on 1st May 1977 and so it is therefore very difficult to ascribe these symptoms directly. to the accident and perhaps they may be explainea in terms of ongoing worries and chest pain .... " In addition, further comments are to be found in Exhibit 32, which is a series of extracts from hospital records. This document reveals that in July of 1981 he was admitted to hospital with suicidal impulses following the breakup of his marriage. The history . at that time also included some violence directed towards a wall at his flat. He complained of finding it hard to think and talk straight. He was hallucinating and had paranoid feelings. In May of 1987 he presented again, after the accident with which I am presently concerned, apparently as a result of the use of some form of drug. Exhibit 30 is a medical report concerning complaints made by him on 6 July 1984 after the accident. It seems that at that stage he was also complaining of being over burdened by psychological problems, although there are not many details of his specific complaints at that time. Given the bac~ground prior to the accident it is very difficult to detennine the extent :to which he now suffers from psychiatric or organic brain injury additional to that from which he was suffering prior to the accident. Dr. Toakley and Dr. Cameron, both of whose evidence I am satisfied to accept, make it clear that any residual organic brain damage attributable to the accident in 1983 is minimal. Dr. Klug, a psychiatrist, is of the view that he suffers from quite serious psychiatric illness sufficient to disqualify him from employment as a truck -Govt. Printer, Old. 4 10 20 30 40 50 60 -- 4 of 13 -- 10 20 30 40 50 60 driver, but it is unclear to what extent that incapacity is attributable to the accident. Dr. Klug concluded that if the position was that prior to the accident he was able to cope with full~time work as a truck drive~ effectively running his own business, then the accident must have left him with some residual additional incapacity, because Dr. Klug is firmly of the view that he is not now capable of doing so. It seemed to me, from Mr. Clifford's cross-examination of Dr. Klug, that Dr. Klug had not fully appreciated the extent of his prior complaints - that is, complaints prior. to the accident -which were recorded in the documentation . I inferred from Dr. Klug's evidence that in light of certain matters put to him specifically by Mr. Clifford in cross-examinationrhe was unable.to say with certainty that there was any residual psychiatric disability as a result of the accident. In re-examination Mr. Lilley, for the plaintiff, put to him the proposition which I have outlined above, namely, that prior to the accident he was able to maintain his own business, with the response from Dr. Klug which I have already outlined. In the end7I am not satisfied to proceed upon the basis that the plaintiff was successfully operating his own trucking business prior to the accident. All of the rrore recent complaints which _ · · emerge from the various medical reports as to his psychiatric condition seem to be replicated ~n the reports.r~latin~ to his condition prior to the accident. " -~ " Whilst it is clear that he was driving a truck and • ivt. Printer, Old. 5 10 20 30 40 50 60 -- 5 of 13 -- ,,----._ / deriving s.ome income from it prior to the accident, his income tax return for the year 1982/'83 does not suggest a very substantial return, although it does suggest some return. The 1983/'84 report gives little assistance because obviously for most of that financial year he was in 10 hospital as a result of his injuries. There is no other evidence as to his employment history prior to 1983, or very little, and it is difficult to come to any firm conclusions in this regard. 20 In the end, although I am satisfied to accept that there may have been some aggravation of his prior condition, which aggravation is permanent, I am not satisfied on the balance of probabilities that such aggravation has been such as to render him incapable of operating as a truck driver. I think it more likely that he was not discharging his 30 duties efficiently prior to the accident, although until that time his short-comings had not been made obvious to those who were using his services, or perhaps it may be that being in a subcontracting role, it didn't matter very much to them. The plaintiff suffered very serious orthopaedic 40 injuries in the acciden½ leading to an extensive period of hospitalisation and numerous surgical procedures. The details of his orthopaedic injuries are to be found in a number of the medical reports. They included acompound fracture of the right femur, a compound fracture of the left so 60 elbow , a comminuted fracture of the left tibia, a fracture of the neck of the right femur and great trochanteri fracture of the left clavicle, fractured ribs with a fail segment on the right side, fracture of the right third metacarpal, fracture of the ulnar styloid of the right -Govt. Printer, Old. 6 10 20 30 40 50 60 -- 6 of 13 -- 10 20 30 40 50 60 wrist, and, of course, a head injury. He has made a surprising recovery from most of these injuries, but retains a residual incapacity in each leg which has been variously estimated in each case as between 5 and 15 percent. The defendant by election has conceded that whatever the extent of the incapacity, it is such as to prevent him in the future from engaging in heavy employment, and I am satisfied to accept that concession. I think that were it not for his psychiatric difficulties, he would be able to take employment as a truck driver, notwithstanding these incapacities, and that he would be able to undertake a quite wide range of labouring tasks, excluding, as I say, heavy labouring. In the light of these circumstances, I_.turn to assess quantum. In respect of pain, suffering and loss of amenity, I consider that a generous award is justified by the extensive period of hospitalisation and the various procedures which he underwent. I will fix the award under this heading at $40,000, and I will allow interest at 6 percent per annum for four and one-sixth years, that is from the date of issue of the writ,on $30,000, showing $7,500. In allowing interest, I have taken into account a small arrount of: the agreed special damages which would 10 20 30 40 normally bear interest,. and I will not allow interest on any o er part of the special damages. In fixing the interest calculation, I. have also taken into account the extent to which he incurred a substantial part of the pain and suffering prior to the issue of the writ. As to past economic loss, for reasons which I have · · ,t Printer, Old. 7 50 60 -- 7 of 13 -- 10 20 30 40 50 60 already canvassed, I have great difficulty in assessing this figure. In the end I am satisfied to accept that a figure of about $6000 per year is. t-J1e best I can do from the plaintiff's point of view, and I have allowed that in the first instance for three years, and therea~ter I have allowed him_ approximately $50 per week. I have rounded this figure off to -a generous 10 total of $30,000. I have allowed interest on $15,000 of that amount at 6 percent per annum for four and a half years, showing a further $3,750. I have chosen the figure of $15,000 to recognize the fact that he received almost $15,000 in sickness benefits during the relevant period. Special damages are agreed at $34,142.60. As to future economic loss, I have allowed him $50 per week for 30 years, which at 5 percent shows $41,000. The quantum will therefore be as follows: (1) pain suffering and loss of amenity, $40,000; (2) interest at 6 percent per annum for four and one-sixth years on $30,000, $7,500; (3) agreed special damages, $34,142.60; (4) past economic loss, $30,000; (5) interest at 6 percent per annum for four and one- sixth years on $15,000, $3,750; (6) future economic loss, $41,000; making a total of $156,392.60. I turn now to the issue of liability. It is the plaintiff's claim that prior to the accident he was travelling inbound in Fairfield Road in the vicinity of its junction with Cook Street, which joined from the left. Some distance prior to the intersection there is a hump in the road which coincides with the entry into Fairfield Road from ·1ovt. Printer, Qld. 8 20 30 40 50 60 -- 8 of 13 -- 10 20 30 40 50 60 the right of a street which passes over an overbridge spanning the adjacent railway line. The plaintiff asserts that as he came to the top of the hill, he became aware of lights ahead of him and asserts in his Statement of Claim that there was an oncoming vehicle travelling on the incorrect side of the road which forced him to veer to the left. Alternatively he submits that he was dazzled by the lights of the oncoming vehicle which were either on high beam or not correctly adjusted. In his evidence in· chief the plaintiff gave the following account of the accident at page 7, lines 20 to 35: "I just came - there was a bit of a rise in the road, and I remember coming over the rise and there was lights coming in the other direction, toward me. They appeared to be on my side of the road, and I couldn't rightly tell because it was brightly - bright, and I just moved to the left to avoid them. What side of the road were you travelling on?-- The left-hand side, correct side. Approximately what speed were you travelling?-- Approximately 45, 50 miles an hour. After you veered to the left do you recall what happened then?-- No. Now, what is your next recollection?-- Being in hospital." It is clear to me that the plaintiff was not there asserting that the oncoming vehicle was seen by him to be on the incorrect side of the road. Although the context of the transcript may not clearly record it, it was clear in my view that when he said, "I couldn't rightly tell," he was making it clear that he had not really seen the vehicle, but rathe~ that he was inferring that it was on the incorrect side of the road. The bright lights seem to have been the thing which specifically impressed him at that ·;·4Vt. Printer, Old. 9 10 20 30 40 50 60 -- 9 of 13 -- 10 20 30 40 so 60 time. My recollection of the evidence in chief was the same as was put by Mr. Clifford a-::. p.37 ci.19-23. When one looks at the evidence of Mr. I.T. Smith, a psychologist who, curiously, hypnotised the plaintiff, one can see that this was probably so. At page 88, lines 20 to 35, Mr. Smith gave this account of what the plaintiff said to him whilst under hypnosis: "Let your mind go back. I want you to describe the events leading to the accident." The plaintiff replied, "I'm going along the road." Mr. Smith said, "Yes, what's on the road?" The plaintiff said, "Only me." Smith said, "What's happening now?" The plaintiff said, "There is someone else coming towards me." Question, "What is it?" Answer, "I can't tell. I can't see beyond its lights. It's a truck or something."Question, "Why.a truck?" "It's a truck or four-wheel drive. The lights are too high for a car." Question, "Tell me more. I want more detail." Answer, "That's all I can see. I can't see past the lights." . Printer, Old. 10 10 20 30 40 50 60 -- 10 of 13 -- 10 20 30 40 so 60 This seems to me to be consistent with what the plaintiff was saying in his evidence in chief, although, as I have said, it may be that the transcript does not quite reflect precisely what he said or the spirit of what he was saying. Similarly, at p.16, lines 8 to 15 he was asked this, "On the night in question, could you tell the Court what your last recollection is in relation to the lights that you described earlier?" "Seeing the lights and having to move out of there - out of the road, otherwise I would have a collision with them - with the vehicle. I can't say what sort of a vehicle it was, the lights were too bright." In cross-examination, it appeared that the plaintiff was· asserting that the vehicle was on the wrong side of the road, but given his approach to this question in evidence in chief, I was unable .to accept his evidence to that effect. It did appear that he had previously made attempts to investigate his own movements on the night in question, suggesting that he had little recollection of them, and it did seem at least possible that he had made assertions to other people which were inconsistent with the case advanced in his statement of claim. In the end, however, I have not taken those matters into account in determining the question of his credit, choosing to base my decision solely upon my impression of him and of his evidence before me. In general, I did not think him a reliable witness. Certain answers to interrogatories were tendered which, it is alleged, might suggest that he had given an inconsistent answer in his interrogatories; in the end, I am satisfied to accept that overal~ the impression being conveyed in the interrogatories was that the vehicle was on _ -•svt. Printer, Qld. 11 10 20 30 40 50 60 -- 11 of 13 -- 10 20 30 40 so 60 the wrong side of the road~but the plaintiff couldn't say how far it was to the wrong side of the road. This is also sufficient to undermine his credibility. The fact that a vehicle may have been across the centre line would hardly result in the sort of evasive action which the plaintiff says he took in this case. It is the plaintiff's assertion that he steered to the left and that as a result, he went off the carriageway and eventually came into collision with a post box in Cook Street. If the oncoming vehicle had been simply impinging across the centre line, one would hardly expect that sort of evasive action. I have kept in mind the evidence of the witness, Vidler. He lived in a flat at the corner of Cook Street and Fairfield Road. He said that just before discovering that there had been an acciden4 he heard a screech and then a thud. He said that he thought the screech was consistent with a motor car skidding on the road and specifically excluded the sound as being caused by a motor cycle. I was not persuaded by his evidence that this distinction could be clearly demonstrated and although I accept that he heard something which he thought was a skid, I am not satisfied to infer from that that it demonstrated the involvement in the incident of a motor car. It may be that somebody skidded in the v1cinity at about that time ; it may be that the screech was a . :: skidding noise from the motor cycle going over the curb, but the fact of the screech does not lead me to take a different view of the evidence of the plaintiff in this case. In those circumstances there will be judgment for the defendant against the plaintiff. , :. Printer, Old. 12 10 20 30 40 so 60 -- 12 of 13 -- ..~--- '' 10 20 30 40 50 60 I order that the plaintiff pay the defendant's costs of the action, including reserved costs. .-. •. ··· ~-,n. Printer, Old. 13 10 20 30 40 50 60 -- 13 of 13 --