Agius v the Nominal Defendant

[1995] QSC 50

IN THE SUPREME COURT

OF QUEENSLAND

No. 3534 of 1989

Brisbane

Before the Hon. Justice Williams

[Agius v The Nominal Defendant]

BETWEEN:

ROBERT ANTHONY AGIUS    

Plaintiff

AND:

THE NOMINAL DEFENDANT (QUEENSLAND)

Defendant

JUDGMENT - G.N. WILLIAMS J

Judgment delivered 30/03/1995

CATCHWORDS:     Negligence - initially no recall of other vehicle being involved - memory recall 6½ months after accident - alleged shrinkage of amnesia - held involvement of unidentified motor vehicle not proved.

Damages - 18 year old male at time of accident - tetraplegic - quantum assessed.

Counsel:Hanger Q.C. & R. Morton for plaintiff

Clifford Q.C. & D. Tait for defendant

Solicitors:Wheldon & Associates for plaintiff

O'Shea Corser & Wadley for defendant

Hearing dates:   7, 8, 9 & 10 February 1995

IN THE SUPREME COURT

OF QUEENSLAND

No. 3534 of 1989

Brisbane

BETWEEN:

ROBERT ANTHONY AGIUS    

Plaintiff

AND:

THE NOMINAL DEFENDANT (QUEENSLAND)

Defendant

JUDGMENT - G.N. WILLIAMS J

Delivered the Thirtieth day of March 1995

As a result of a motor vehicle incident which occurred on 12 January 1987 Robert Anthony Agius, the plaintiff, was rendered tetraplegic and sustained other injuries.  He was born on 9 February 1969 and was thus aged 18 when injured.  By the end of the trial there was substantial agreement between counsel as to the quantum of damages the plaintiff should recover if he were successful in establishing that his injuries were caused by the negligent driving of an unidentified motor vehicle for which the defendant was statutorily responsible.
           The incident occurred at about 7.00 a.m. approximately seven kilometres south of Rockhampton on the Bruce Highway.  At the time the plaintiff was driving a Toyota Hilux 4 Wheel Drive Utility.
           On the trip the plaintiff's cousin, Simon Fauchon, was a front seat passenger.  In an affidavit filed in support of an extension of time within which to give notice to the defendant the plaintiff said with respect to his cousin:

"The first time I saw my cousin Simon Fauchon was when he came down to see me when I was in Intensive Care.  I spoke to him for a short period of time but we did not discuss the cause of the accident.  The next time I saw him was a couple of months later.  I cannot remember exactly when.  We did talk about the cause of the accident but he could not remember the circumstances of the accident either.  We could not reach any conclusion as to the cause of the accident."

Fauchon was residing with the plaintiff and his family at the time of the trial and was in the precincts of the Court over the duration of the trial, but he was not called as a witness.  The conclusion is obvious that Fauchon can throw no light on what happened at the material time and could not support the plaintiff's contention that an unidentified motor vehicle was the cause of what happened.
           The evidence establishes that the plaintiff and his passenger left Brisbane at about midnight and travelled north along the Bruce Highway.  They stopped once at Nambour and again at a service station south of Maryborough to get petrol and something to eat.  The plaintiff had had a few hours sleep before he was woken at about midnight to leave on the journey. 
           No eye witnesses to the incident were called to give evidence.  When ambulance officers, and others, arrived at the scene the plaintiff's vehicle was in a paddock some distance east of the Highway; that is some distance off to the right in the plaintiff's direction of travel.  Marks on the gravel shoulder on the left hand side of the carriageway and on the bitumen would tend to support the hypothesis that the passenger side wheels of the vehicle went off the bitumen onto the left hand gravel shoulder and that the vehicle then swerved at a sharp angle across the bitumen carriageway, through a fence, and into the paddock where it came to rest near a pile of timber.  Photographs of the vehicle would indicate that at some stage it rolled.
           Until 29 July 1987, that is approximately six and a half months after the incident, the plaintiff had no material recollection of what happened.  When he regained consciousness in the Princess Alexandra Hospital he could recollect his cousin pointing out the buildings of Rockhampton in the distance and then there being a loud bang and something white hitting the windscreen.  He also had from about that time some vague recollection of being in the vehicle and looking up at the sky and also of his cousin being with him.  They were his sole recollections of the incident prior to July 1987.  Somewhat significantly he claimed in evidence at the trial that he could not recollect whether or not he was still in the vehicle when he saw the sky.
           The plaintiff frankly admitted that whilst in the Princess Alexandra Hospital he had numerous discussions with his father in which they explored the possible causes for the accident.  His father informed the plaintiff that the vehicle had gone off the road to the right hand side, that it had obviously overturned, and that there was no other damaged vehicle in the vicinity.  Relatives had taken a video of the scene a day or so after the accident happened and the plaintiff agreed he probably saw that video before he left the Princess Alexandra Hospital and was aware of what it showed.  Ultimately, towards the end of the defendant's case, the plaintiff introduced that video into evidence.  I accept Cowie's evidence that the video does not accurately show the scene shortly after the accident.  Clearly the plaintiff had been involved in a great deal of discussion with his relatives about the accident before he first recalled the presence of some other vehicle.
           The first account of the plaintiff's recollection of another vehicle being involved is contained in the letter from his solicitor to the defendant of 14 October 1987.  Relevantly it said:

"Agius was not able to recall the accident and it appeared that the accident was a single vehicle accident.

Recently, however, as a result of therapy received he has been able to recall the accident and remembers now that a second unidentified vehicle was involved in that it overtook him on the highway and then cut immediately in front of him, forcing him off the road."

The plaintiff was cross-examined about those particular assertions on the application for extension of time.  He referred to therapy, including physiotherapy, but conceded that he could not particularise any therapy that caused the sudden recollection.  He said:  "It was a matter of recalling it."  But interestingly he has never denied stating that therapy played some part in promoting the recollection.
           The plaintiff gave an account of the recollection in his affidavit in support of the extension of time.  It is interesting to note that he then said:  "Gradually as time went by, I've been able to recall more and more of the accident and what happened afterwards".  Under cross-examination on the earlier occasion, and during this trial, he was not able to support that contention.  There was no gradual ability to recall more of the accident.  He recalled some things immediately on regaining consciousness, and that remained the position until he had the sudden recall in July of the involvement of the unidentified white vehicle.  As he said in the affidavit:  "Suddenly the memory of the white car just popped into my head".  Here it is worth setting out the following passage from the cross-examination of the plaintiff at the trial:

"Q. So one minute on or about 29 July there is no explanation, and the next minute you have a complete memory of the presence of the white car and what it did?- A. Yes, I remember - remember the white car overtaking me and it just....

Q.  But it wasn't a matter of remembering something about a white car and gradually building a picture.  One moment you didn't have a memory, the next minute you had a memory of the white car overtaking, veering across and you swerving off left to avoid it.  Is that what you are saying?- A.  Can you repeat that, please?

Q.One minute you had no recollection at all?-  A. Yes. 

Q.  The next minute this popped into your head, and you had a recollection of the white car overtaking you, almost completely, moving across, concluding that it might hit you, veering to the left, and then having a loud bang and something white?-  A.  Yes.

Q.  Was it a complete memory then from the presence of the white car right up until the white car and something white hitting the windscreen?- A. Yes, once I remembered the white car I remembered him overtaking me and veering to the left.

Q.  Is it the case that since that date on or about 29 July you've not been able to remember anything further about the white car?  There has been no further detail?-  A.  That's correct."

In his evidence in chief he said that the memory came back to him "around 7 in the morning, around when breakfast comes in the ward and P.A. Spinal Unit."  The account of the white car given in evidence in chief was as follows:

"I remember a white vehicle overtaking me.  It proceeded to come across into my lane and I thought the rear of his vehicle was going to hit the front of my vehicle.  I veered left to avoid hitting him and then I heard a loud bang and something white hitting the windscreen."

On a number of occasions in the course of his evidence the plaintiff stated that he no recollection of applying or touching his brakes at the time of the incident.  He also said that he had never made such an allegation.  However in answers to interrogatories the plaintiff did specifically refer to braking.  In answer to interrogatory 32 he said:

"When the white vehicle commenced to move into my lane I braked and simultaneously veered to the left to avoid collision."

Later in the same interrogatory he said:

"I then braked and simultaneously veered to the left to avoid collision."

Further, on three occasions in answering interrogatory no. 33 he referred to braking in an attempt to avoid a collision. He also there said:

"My speed decreased although I am unable to say the rate of decrease in speed caused by applying the brakes."

When those answers were put to him in cross-examination he said he couldn't remember braking but he then became somewhat evasive using expressions such as:  "but the bit about the braking I'm not sure of". 
           Whilst it is true to say that in all probability the answers to interrogatories were drafted by his legal advisers, the relevant statements are so obvious that he could not have been in any way confused by the drafting.  At best for the plaintiff this demonstrates how responsive his mind is to suggestions as to what may well have happened leading up to the crash.  This is of real significance when it comes to the ultimate question of deciding whether or not the plaintiff's asserted new recollection of what occurred should be accepted as a proven fact in this litigation.
           I do not propose to set out the medical evidence dealing with the shrinkage of retrograde amnesia and the return of memory after a head injury.  On balance it seems accepted by medical specialists that there can be a shrinkage of amnesia, and later recollections may be "islands of memory" rather than a sequential recall of a series of events.  But having said that I record my acceptance generally of the views expressed by the medical specialists called by the defence, rather than the evidence of those called as part of the plaintiff's case.  There is no way a medical specialist can determine whether or not an asserted recall of memory is truly a product of the shrinkage of amnesia rather than the result of information supplied to the mind subsequent to the events in question.  Really the medical specialist is in no better position than the trial Judge in this regard.  However, the medical expert can identify usual or unusual features which may indicate that the alleged memory recall fits or does not fit the established pattern of memory recall post-amnesia.  Here I accept those parts of the medical evidence which tend to establish that this memory recall does not fit the normal pattern associated with shrinkage of amnesia. 
           It cannot be ignored that what is put forward by the plaintiff as his lately recalled memory of the circumstances of the accident establishes no more and no less than what is essential to enable him to succeed in an action against the defendant.  Further, there is no other evidence at all supporting the accuracy of the critical evidence.   There is no other evidence supporting the presence in the general vicinity of a white motor vehicle; there is no evidence (such as a mark on the plaintiff's vehicle or on the roadway) tending to confirm the involvement of another vehicle in the incident; and the passenger (who did not sustain any major head injury) cannot support the assertion that another vehicle was involved.
           The plaintiff's case on negligence depends wholly upon the acceptance of his recalled memory as establishing on the balance of probability not only the presence of another vehicle at the scene, but the allegation that the other vehicle was driven negligently and that such negligence was the cause of the injuries sustained by the plaintiff.  Particularly given the inconsistencies in the plaintiff's evidence as to how and when that memory was recalled, and his inconsistent evidence as to his recollection of braking or not braking at the material time, I am not prepared to accept his testimony as establishing on the balance of probability either the presence of the unidentified motor vehicle or negligence in the way it was driven causing the plaintiff's injuries.
           This is not a situation where the accident can only be explained by the presence of some other vehicle in the vicinity.  On the contrary, it has many of the features common to single vehicle accidents.  The plaintiff was an inexperienced driver; this was his first long distance drive.  He was driving a high performance vehicle, and given the distance travelled from when he left Brisbane (over 600 kilometres) he must have averaged a speed in excess of 100 kilometres per hour.  He had driven virtually non-stop through the hours of darkness after midnight, and the accident happened at a time when fatigue could have been expected to be present.  Against that background the loss of control of the vehicle can be readily explained; once the driver initially lost control there was nothing unusual about the near side wheels travelling onto the gravel shoulder, and there being an overcorrection on the steering resulting in the vehicle careering off the carriageway to the right.
           Finally I should record that the demeanour of the plaintiff whilst giving his evidence has not played any significant role in my findings.  Being a tetraplegic he gave evidence from his wheelchair situated in the well of the court.  During the period he was giving evidence his mood was somewhat flat and unemotional.  There was little movement of head and hands during the course of his giving evidence.  In consequence there was nothing about his demeanour which could be relevant to the acceptance or rejection of his evidence.
           At the end of the day for all the reasons I have given I am not satisfied either of the presence of an unidentified motor vehicle at the scene of the accident or that the manner in which such an unidentified vehicle was driven was a cause of the accident.  It follows that the action must be dismissed.
           Nevertheless it is desirable that I assess the quantum to which the plaintiff would be entitled if liability was established.  As noted above, and as is obvious from the following tabulation, there was substantial agreement between counsel as to the appropriate figures.  The following sets out the amounts contended for by the plaintiff and defendant:

Plaintiff's Submissions	Defendant's Submissions
1.        Pain and suffering and loss of amenities	$180,000.00	$180,000.00
2.        Interest on past award ($60,000.00 x 2% x 97/12)	$  9,700.00	$  9,700.00
3.        Past economic loss	$118,000.00	$ 95,000.00
4.        Interest thereon	$ 28,130.00	$ 16,975.00
5.        Future economic loss	$324,000.00	$260,000.00
6.        Loss of past Superannuation benefits	$  2,100.00	$  1,680.00
7.        Loss of future Superannuation benefits	$ 35,113.00	$ 28,090.00
8.        Past pharmaceuticals	$    807.65	$    807.65
8A.     Interest            (6% for 7.25 years)	$    351.32	$    351.32
9.        Future pharmaceuticals	$  4,413.46	$  3,519.00
10.      Past out of pocket expenses	$  9,845.66	$  9,845.66
11.      Interest thereon	$  5,543.84	$  5,543.84
12.      Modifications to vehicle	$ 16,284.46	$ 16,284.46
13.      Interest thereon            (12% from December 1993)	$  1,791.29	$  1,791.29
14.      Future vehicle modifications            Future maintenance	$ 11,038.60 $  3,177.00	$ 11.038.60 $  3,177.00
15.      Past expenses            (Health Department)	$ 11,616.11	$ 11,616.11
16.      CRS refund	$  6,060.05	$  6,060.05
17.      Future recurring expenses	$116,600.00	$ 92,921.00
18.      Past care	$219,540.00	$219,540.00
19.      Interest thereon            ($219,540.00 x 2% x 97/12)	$ 35,492.30	$ 35,492.30
20.      Future care and housekeeping	$642,600.00	$512,400.00
21.      Future home modifications	$ 70,000.00	$ 40,000.00
22.      Future recurrent dwelling costs (excluding maintenance costs) ($1216.00 p.a. for 40 years)	$ 21,467.00	$ 17,118.00
23.      Future home maintenance            ($1642.00 p.a. for 40 years)	$ 28,980.00	$ 14,640.00
24.      Loss of expectation of life	$  5,000.00	$  3,000.00
25.      Extra holiday and travel expenses	$ 25,000.00	$ 25,000.00
26.      Past hospital fees	$ 62,194.00	$ 62,194.00
27.      Travelling expenses for parents to visit hospital (261 days x 40km x $0.35 per km)	$  3,654.00	$  3,654.00
28.      Interest thereon            (12% from October 1987)	$  3,718.98	$  3,718.98
29.      Extra costs in having children	$ 73,015.00	$  5,000.00 to $ 10,000.00

The calculations expressed in the left hand column are those of the plaintiff.

The difference in items 9, 17, 20, 22 and 23 is essentially due to the multiplier used in the calculation.
Item 3 - Past Economic Loss
           The plaintiff's claim is simply based on the accountant's calculation.  That calculation as such is accepted by the defendant, but its contention is that there should be a discounting made because of certain considerations.  At the time he was rendered tetraplegic the plaintiff had demonstrated no specific income earning capacity.  His only work had been in the family business conducted by his parents.  At the time of the accident he was on his way with his cousin to take up employment in the fishing industry; it was the cousin who had organised that job for him.  The plaintiff had done reasonably well at school, and it is obvious that he had a pleasant personality.  I am satisfied that he would have had no difficulty generally in obtaining employment but the defendant's submission is correct.  Given his age there is a very real possibility that the plaintiff would have changed jobs from time to time before he settled into a permanent line of employment.  He probably would have enjoyed outdoor work, such as fishing, for some time, but his long term future lay in other fields.  He may well have eventually qualified as a plumber, but there is no certainty in that.  The accountant's figures in effect assume the plaintiff was a first year apprentice as at the date of the accident; that is clearly not the case.
           In the circumstances there must be a significant discounting from the accountant's calculation.  The defendant contends for a 20 percent discount, and in my view that is reasonable.  I will therefore allow past economic loss in the sum of $95,000.

Item 4
           The defendant submits that social security payments received by the plaintiff should be subtracted before interest is calculated on past economic loss.  I agree with that contention.  In the circumstances interest on past economic loss will be allowed in the sum of $16,975.
Item 5
           The plaintiff's calculation of future economic loss is a projection into the future based on the assumptions made with respect to past economic loss.  Again it must be said that the plaintiff had not demonstrated any particular earning capacity, and in consequence one cannot treat those assumptions as established propositions of fact.  Again the defendant contends for  a 20 percent discount from the figure calculated by the accountant, and that is, in my view, appropriate.  Future economic loss should therefore be assessed in the sum of $260,000.
Item 6 - Loss of Past Superannuation Benefits
           The same discount for past economic loss, namely 20 percent, should be allowed.  This amount should be assessed in the sum of $1,680. 
Item 7 - Loss of Future Superannuation Benefits
           Similarly here a 20 percent discounting should be applied to the accountant's calculation, and $28,090 allowed.
Item 21 - Future Home Modifications
           This is a difficult item to quantify.  I accept that there would be some increase in value because of the nature of the home, but market value will be volatile because of the indefinite demand for houses of this type.  Doing the best I can on the evidence I would assess the quantum of this item in the sum of $55,000.
Item 23 - Future Home Maintenance
           The evidence does not establish that the plaintiff would have done the work on which the calculation for the plaintiff is based.  The defendant's submits that on the evidence a reasonable allowance is $20 per week, and I would accept that.  In all the circumstances I will allow $15,600 which is arrived at using 780 as a multiplier.
Item 24 - Loss of Expectation of Life
           In my opinion the $3,000 contended for by the defendant is in keeping with the conventional sums awarded under this head, and I will allow that figure. 

Item 29 - Extra costs in having children
           On the evidence this is a very speculative claim.  The plaintiff may or may not marry.  If he marries his wife may or may not be prepared to undergo the procedures necessary in order to have a child by the plaintiff.  There is no certainty that the plaintiff would have more than one child, if any.  There is no certainty as to when in the future this cost would be incurred.  In all the circumstances an allowance of $10,000 is more than generous to the plaintiff.
Items 9, 17, 20, and 22
           As noted above the difference between the parties with respect to these items relates to the multiplier to be used.
           The parties agreed that the plaintiff's unimpaired life expectancy was a further 50 years; he is now aged 25.  The unchallenged evidence of Dr Davies is that the plaintiff's life expectancy has been reduced by his injuries by 10 to 15 years in the best possible circumstances.  In other words, in the best possible circumstances he might be expected to live another 35 to 40 years, or to age 60 to 65.  Those figures, not further discounted, have been used to calculate these items as stated in the plaintiff's column.  The defendant, however, contends that there should be some discounting because of the significant possibility of the plaintiff not living that long; the best possible prognosis may not become the reality.  The defendant's figure for each of these items has been calculated on the basis of there being a 25 percent discount from the 50 year life expectancy.  Given all of the evidence that, in my view, is too great; in all the circumstances a discount of 20 percent from the 50 year figure is appropriate.  On that basis the multiplier becomes 780.  That is the multiplier which should be used in each of the items referred to, and that produces the following figures:-

Item 9$  3,744

Item 17$ 99,060

Item 20$546,000

Item 22$ 18,236

The action will be dismissed with costs.