Bossley v Nominal Defendant

[2007] NSWDC 298

CITATION:	Bossley v Nominal Defendant [2007] NSWDC 298
HEARING DATE(S):	7 - 9 August 2007, 21 November 2007
EX TEMPORE JUDGMENT DATE:	27 November 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1.There will be verdict and judgment for the plaintiff in the sum of $85,270.85; 2.The defendant is to pay the plaintiff’s costs on an ordinary basis up to and including 1 December 2006 and on an indemnity basis thereafter; 3.Exhibits will be retained for 28 days.
CATCHWORDS:	Credit - Due inquiry and search - Satisfactory explanation
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Australian Road Rule 287
PARTIES:	Andrew BOSSLEY THE NOMINAL DEFENDANT
FILE NUMBER(S):	Coffs Harbour 37/06
COUNSEL:	Plaintiff - M B Inglis Defendant - J Guihot
SOLICITORS:	Plaintiff - Pollock Greening Defendant - Moray & Agnew

JUDGMENT

1 Andrew Christopher Bossley claims an injury to his right hand as a consequence of a motor vehicle accident which he alleges occurred on New Year’s Day in 2005. His claim involves an unidentified motor vehicle and thus the Nominal Defendant. Much was placed in issue in the hearing of the case which commenced in Coffs Harbour in August 2007 and concluded in Newcastle in November 2007.

2 The issues were:

1. whether section 70 of the Motor Accidents Compensation Act 1999 had been complied with;

2. if not, whether there was a satisfactory explanation for the failure to comply;

3. whether there was due search and inquiry into the identity of the other alleged motor vehicle;

4. whether the accident occurred in the manner described by the plaintiff;

5. the nature and extent of the injury and whether it in fact resulted from the alleged motor vehicle accident;

6. the extent to which the injury affects the plaintiff’s income earning capacity, and

7. the amount to be allowed for out of pocket expenses, past and future.

The Plaintiff’s credit

3 A number of challenges made by the defendant were based upon alleged inconsistencies in the evidence of the plaintiff or in statements that he had made in the course of preparing his claim for hearing. As a result of those inconsistencies, I was urged not to accept the plaintiff as a witness of credit. I reject this proposition for the following reasons:

1. The plaintiff was described by almost all medical experts as straightforward, without inconsistent pain behaviour and co-operative in examination and testing.

2. His evidence to the Court was straightforward.

3. He suffers from a psychiatric condition of attention deficit disorder which has limited his intellectual development. He was educated at home as a result of his condition to a year 8 level only. On the basis of his psychiatric condition, I regard an element of inconsistency as not necessarily an indication of dishonesty on his part.

4.The documents in evidence indicate that the plaintiff has a strong work ethic. Documents produced by Centrelink indicate that he expressed a wish to work, notwithstanding the assessment that he qualified for a Disability Support Pension. There were many other references in the medical evidence to the plaintiff’s express desire to work. His stepfather describing him as a person who was born to work .

4 I have therefore proceeded to deal with the plaintiff’s claim on the basis that he was essentially an honest witness, although I have not accepted all of his evidence.

Issue one – section 70.

5 The plaintiff said he did not initially report the accident to police. His knowledge and belief at the time was such that he thought it was only necessary to do so if there was property damage exceeding $500. He said at the time he was unaware of the extent of the injury to his right hand. It is clear therefore that he did not comply with Australian Road Rule 287 by reporting the accident within 24 hours and that thus he did not comply with section 70(a) of the Act.

6 The plaintiff’s evidence was that he contacted police three or four weeks after the accident when his wrist was not improving. He said he rang the police station at Nambucca. He did not remember if he had told his solicitor Mr Brennan in December 2005 that he had reported it to Macksville. It was clear that there was some confusion as to which police station took the report, this being because at times when the Macksville police station was not attended by any police officer, telephone calls would be diverted to Nambucca or to Kempsey police stations.

7 The plaintiff denied that he had fabricated his evidence concerning reporting the matter to police. He said he was given no reference number after he made the report and he did not take the name of the police officer. He said he obtained the telephone number of the police station from the telephone book but he did not remember it. The call he said was made from his home, either by mobile phone or by the house phone. He ultimately said he believed that it would have been made from one of his many mobile telephones.

8 Mr Brennan said he took preliminary instructions from the plaintiff in December 2005 and that the plaintiff had told him that he reported the accident to the local police. He had assumed that this would have been to Macksville. Mr Brennan wrote to the Macksville police within one or two days of receiving the instructions. In response he received a telephone call from Police Officer Toomey at Nambucca who said he could find no record of a report of an accident. Officer Toomey said that there was a note of contact with the plaintiff but with no reference in that note to a motor vehicle accident.

9 The explanation from the plaintiff was attacked as a fabrication. I do not accept this proposition. My rejection of the proposition is based upon the evidence of Mr Brennan that the police officer to whom he spoke at Nambucca acknowledged that there was a note of contact with the plaintiff. Mr Brennan named the officer concerned and his station and he was not challenged on this evidence.

10 It was said that the explanation was not full or satisfactory. This proposition appeared to be based upon the fact that no telephone records had been produced to confirm that the telephone call had in fact been made. According to the plaintiff he had had many mobile telephones.

11 In any event I have already accepted the evidence that a call was in fact made.

12 It was suggested that the plaintiff had not satisfactorily explained why he did not report the accident to the police station at Macksville when he attended there on 6 January 2005 to seek treatment at the hospital. His explanation was that he did not understand that his injury was as serious as subsequently established. He said the doctors at Macksville told him that it was not a serious injury and he did not appreciate its severity until he returned to work, which on the evidence was on about 27 January 2005. It was at this point that he said he reported the accident.

13 In summary the provisions of section 70 were not complied with. I accept that I have received from the plaintiff a full explanation based upon his knowledge and belief into the circumstances why the requirement to report the accident within 24 hours was not met. I find that he did in fact report the accident at some stage shortly after 27 January 2005. I am satisfied with and I accept the explanation that was given by the plaintiff for the failure to comply with the requirements of section 70 of the Act.

Issue two - due search and inquiry

14 Section 34 of the Act permits a claim to be brought against the Nominal Defendant if the identity of a motor vehicle cannot be established after due inquiry and search.

15 The authorities indicated that due means due in the circumstances and that the provisions of the section are directed at identifying the motor vehicle concerned. It is stated in the authorities that close regard needs to be paid to the situation in which the need to identify the vehicle arises. A distinction is drawn between a seriously injured plaintiff who remains unconscious for weeks and a person who suffers a minor injury and who might be expected to be able to take immediate action to identify the other motor vehicle.

16 The current case is not one where undertaking an enquiry would have been an exercise in futility. The issue is whether the searches that were undertaken by the plaintiff were sufficient to qualify as due in the situation in which he found himself.

17 The plaintiff’s evidence was that immediately after the accident he remounted his motor cycle and rode around the streets of Scotts Head searching for it. He described the vehicle as a grey or silver sedan, probably of Japanese make, with a P plate. He was unsuccessful in locating the vehicle and therefore he went to his home. He then undertook a second search with his stepfather in his stepfather’s car. Mr Bossley senior said that Scotts Head was not a very big place and after some time searching the streets of Scotts Head, without success, they returned to their home. It was apparent from the evidence of the plaintiff and his stepfather that, by this stage, the motor vehicle was probably no longer in Scotts Head. Newspaper advertising was undertaken without result by Mr Brennan in December 2005 after he received instructions.

18 The question was whether and at what stage enquiries might have been made of persons who might have witnessed the accident. There was evidence from the plaintiff and Ms O’Shannessy of businesses and a caravan park and a children’s playground in the vicinity of Ocean Street where the accident took place. There was evidence that the population of Scotts Head at this time expanded from 800 by an additional 2,000 for the New Year’s Eve festivities. According to Ms O’Shannessy, some persons left immediately after the New Year’s Eve festivities, some left during New Year’s day and the balance were short term vacationers. It was clear therefore that there was some imperative, if eye witnesses were to be located, in taking action straight away and, in retrospect, that is something that a reasonable person might have attended to.

19 The plaintiff said that at the time of the accident he saw no one nearby and no one came to his assistance after he had ended up on the road. Further, at this stage, the plaintiff believed that the only issue that was facing him was the recovery of property damage.

20 In my view the search was not perfect but having regard to the context and the situation that the plaintiff faced at that time, his conduct in mounting the motor cycle and searching for the vehicle, rather than stopping to take statements from potential witnesses, was not unreasonable and I have accepted that the enquiries and searches that he did make were due and appropriate.

Issue three - whether the accident occurred in the manner described by the plaintiff

21 In simple terms, the plaintiff claimed that having turned right from Short Street into Ocean Street, he was faced with a motor vehicle travelling in the opposite direction on the wrong side of the road. He said he swerved left to avoid it and then immediately had to swerve to his right again to avoid an Armco rail. In swerving to the right he put the motor cycle down on the road. He said this was the only course available to him. He said there was damage to his motor cycle and that the motor cycle came into contact with his right hand and arm as it fell to the road.

22 There were some inconsistencies in his evidence. They related to the extent to which he had driven into Ocean Street at the time of the accident. To the Court he said that he had travelled some distance. In his statement, Exhibit 12, dated 7 September 2006, he said he had just turned into Ocean Street when he saw the approaching motor vehicle. The statement of claim referred to his commencing to negotiate the turn into Ocean Street when he found it necessary to take evasive action.

23 The second question was whether the engine of the motor cycle had stalled after the accident. He told the Court that the engine was still running. In his statement he said that the engine had stalled and that he restarted the engine after he remounted the motor cycle.

24 The plaintiff’s evidence indicated that his major focus at this time was getting himself out of the hazardous situation in the centre of the road.

25 Reference was made to Dr Baker’s clinical record where it reads that the plaintiff was run off the road and his report of 26 May 2005 to the effect that the bike went into gravel on the side of the road and the back wheel spun out from beneath him. On this basis it was suggested to the plaintiff that in fact there was no involvement of another motor vehicle. However the preceding sentence makes it clear that the version recorded by Dr Baker was substantially similar to that of the plaintiff, namely he was riding his motor bike and a vehicle travelling towards him swerved to his side of the road. Evasive action was taken.

26 I have already expressed the view that I accept the plaintiff as basically honest in his evidence and on this basis I do not think that the minor inconsistencies to which I have been pointed should persuade me not to accept his evidence as to the circumstances in which his injury occurred. I am satisfied therefore that the plaintiff lost control of his motor cycle as a result of the oncoming motor vehicle being on the wrong side of the road.

27 I find that there was negligence on the part of the driver of that motor vehicle and that therefore there is liability on the part of the Nominal Defendant to the plaintiff.

Issue five - injury resulting from the accident

28 The plaintiff claimed injury to his right wrist and the question is whether the condition of his wrist is the result of injury in this accident or the result of a prior injury.

29 The evidence was that the plaintiff was in fact somewhat accident prone in that he had suffered a number of injuries prior to 1 January 2005, including a green stick fracture of his right wrist in 1997 or 1998.

30 The defendant relied upon Dr Korber whose opinion was that the radiology indicated that there had been no recent fracture of the plaintiff’s right hand or wrist. Dr Baker and Dr Hopcroft took a different view. Dr Baker in December 2006 reviewed X-rays of the prior greenstick fracture and said that there was nothing to suggest that this injury had contributed to the plaintiff’s current disabilities.

31 In 2007 Dr Baker considered Dr Korber’s findings which he said opened the possibility that there was a pre-existing problem of which the plaintiff had been unaware. Dr Baker said that frequently non union of chip flake fracture or avulsion fragments from the triquetral will become asymptomatic. He said that he had never experienced a fracture such as that which he identified when he conducted surgery on the plaintiff’s hand associated with a greenstick fracture such as the plaintiff suffered in 1997 or 1998.

32 He said there was a possibility that it was the result of some other incident that the plaintiff had forgotten. However he noted that the plaintiff’s history was that he had worked as a panel beater and Dr Baker set out reasons why it was not possible to state with confidence that an old injury was involved. He also referred to soft tissue swelling which was recorded in the notes of the Macksville Hospital on 6 January 2005 which indicated that there was an acute fracture.

33 He said therefore that there was a counter argument available to that of Dr Korber and he maintained his opinion that the plaintiff’s current disabilities were the result of a fresh injury in January 2005.

34 Dr Hopcroft diagnosed an injury to the triquetral bone which had been fractured into several small fragments. He said that arthritis was inevitable at the pisotriquetral junction. He said the paraesthesia from which the plaintiff was suffering was probably the result of irritation of the ulnar nerve. Having read both the reports of Dr Korber and Dr Baker, Dr Hopcroft said he considered that both were correct, that is, that there were some separated ossicles in the area of the pisiform bone prior to injury but that Dr Baker had found separated fracture fragments over the pisiform. He noted that there had been no symptoms prior to January 2005 and he concluded that on 1 January 2005 the plaintiff had damaged his hand to such a degree that one of the ossicles or that a fracture fragment had been removed from the pisiform. His opinion as to causation therefore remained unchanged.

35 Dr Conolly was initially inclined to agree but, having reviewed the material from Dr Korber, he agreed that the X-rays indicated that the plaintiff had suffered from an old rather than a recent skeletal injury. The swelling he said was indicative of soft tissue injury and said that the plaintiff had therefore suffered an aggravation of the old injury. He attributed the plaintiff’s current condition 50% to the old injury and 50% to the injury on 1 January 2005.

36 It is clear that it is unnecessary for me to decide whether plaintiff’s current condition is the result of an old injury or a fresh injury in January 2005. As pointed out by both Dr Baker and Dr Hopcroft, if an old injury was involved it was asymptomatic until January 2005, allowing the plaintiff to undertake employment as a panel beater. It became symptomatic thereafter and has resulted in the current symptoms complained of by the plaintiff. I find therefore that the current condition arises from the accident of 1 January 2005.

Issue six - the extent to which the injury affects the plaintiff’s income earning capacity

37 The plaintiff’s evidence was that prior to the accident he had developed a practice of writing with his left hand and that he carried out all other activities with his right hand, including hammering during the course of his employment as a panel beater and subsequently as a concreting labourer. I have therefore regarded him for the purposes of assessment as essentially right hand dominant.

38 The plaintiff completed his apprenticeship as a panel beater and had a solid history in that work until his family moved to Scotts Head in 2004. He was unable to find panel beating work and he subsequently obtained work as a labourer assisting Mr Aaron Cooper, a concreter. He said he had done this work for about a year prior to the accident. He worked as a subcontractor, rendering invoices for the days worked. He said he worked whenever there was work available, at times up to five or six days a week.

39 A number of schedules of his income have been provided to me in evidence. I find that his most likely future prospects for employment were as a panel beater when work was available or otherwise as a labourer or concreter.

40 He was working as a concreting labourer at the time of the injury, although he was on leave for the Christmas period until 27 January 2005. The plaintiff said that in April 2005 he ceased work because of the difficulties of working with his injured hand. There was a problem with his claim because there are Centrelink documents in evidence that indicate that, at that stage, there was a resurgence of his psychiatric problems. A report of Ms Tindall of 23 November 2005 refers to severe symptomatology of ADD, in respect of which the plaintiff had a long term history of episodic fluctuations which made sustaining employment difficult.

41 Dr Graecen, who undertook a work capacity interview with the plaintiff in November 2005, referred to his ceasing work in March 2005 because he had become unsettled, distractible, aggressive and depressive. Apparently a working colleague had told him to take some time off in order to get himself sorted out. Dr Graecen made reference to problems which the plaintiff had encountered during the year which included a relationship break up with a girlfriend, a fracture of his wrist, the loss of his driver’s licence which the plaintiff said was for speeding, a burglary and that he felt very, very stressed. He had lost a large amount of weight through anorexia, he suffered from terminal insomnia, anhedonia and he was demoralised. The plaintiff’s mother reported that in the last 12 months he had been the worst he had ever been. There were reference throughout Dr Graecen’s report to the plaintiff’s wish to work.

42 The result of this material is that I find that, whilst it was likely that the condition of the plaintiff’s right wrist was a contributor to his psychiatric condition, the evidence indicated that it was not the primary cause of his unemployment during the bulk of the period between April 2005 and August 2006. The primary cause was his psychiatric condition.

43 There was evidence from Dr Hopcroft that the plaintiff required a period of three months to recover from the surgery undertaken by Dr Baker in January 2006 and I find that this was the primary cause of his incapacity in that period. I have allowed therefore a period of 12 weeks in the amount claimed of $439.35, amounting to $5,272.20 in respect of past income loss.

44 After surgery, the evidence was that the plaintiff’s level of discomfort was decreased but it was not entirely resolved. He returned to work in August 2006, initially on light duties, and he said he increased his duties to doing as much as he could. Some of the work which he currently undertakes involves the construction of concrete tanks which is less demanding. He said he now uses a hammer with his left hand and some of his other duties cause him pain but he undertakes them regardless. He complained of discomfort at the end of each day, increasing as the week progresses. These complaints were confirmed by Mr Bossley senior.

45 At the time of hearing his evidence in August 2007 the plaintiff was working five or six days a week because he needed funds for dental surgery. He said he would cut back his working days once this need had been met and he thought that his capacity extended only to four working days a week.

46 Videotaped evidence of the plaintiff working on a building site in April 2007 was shown to the Court. On the basis of this material it was argued that the plaintiff’s evidence exaggerated his current condition. Both Dr Hopcroft and Professor Conolly were shown the video tape. They arrived at different conclusions having viewed it. There was agreement between all doctors that the plaintiff would not return to panel beating work.

47 Dr Conolly originally agreed that the plaintiff had limitations but, after viewing the video tape, he concluded that the plaintiff had fully recovered. On his viewing, he said that the plaintiff appeared to be fully fit for the work that he was undertaking. He agreed that the complaint of pain and stiffness at the end of a day’s work was an indication that there was some effect as a result of his injury and he agreed that numbness in the little finger of the plaintiff’s hand was an indication of some damage to the ulnar nerve. He agreed that the plaintiff could not return to panel beating or use tools causing vibration or use his hand as if it were a hammer. He said that the plaintiff could work without other restrictions at this stage.

48 In reference to the observations made by Dr Hopcroft, Professor Conolly said he had not seen those matters, notwithstanding that he had viewed the videotape twice. He agreed that Dr Hopcroft’s observations could be valid and said that he would need to look at the videotape again.

49 Dr Hopcroft said that he saw nothing inconsistent on the videotape. He noted that the plaintiff had used his left hand more in the course of his manual work and that he had favoured his right hand. He had undertaken tasks by supernating the hand and by not flexing it. He had been seen resting on the left hand. He described a number of activities indicating that the plaintiff favoured his right hand. Dr Hopcroft accepted that it was likely that the plaintiff’s hand was stiff and painful by the end of the day and that it would be worse by the end of the week. He said it was reasonable that the plaintiff should work four days only and that he might need to reduce his working hours to half days. He said that the plaintiff should not undertake concussive movements of his right hand.

50 Dr Hopcroft denied that he had overlooked activities where the plaintiff worked bimanually and he produced notes which indicated that he had in fact viewed those activities. He denied that the plaintiff had used each hand appropriately and stated that in a large section of the video the plaintiff had not been using his right hand to full capacity. He rejected the proposition that, if the plaintiff did not undertake hammering work, he could work indefinitely five days a week.

51 Dr Baker was not shown the video tape but he did express a view about the plaintiff’s capacity for employment. He said that the plaintiff was a straightforward young man who had used his manual skills in labouring occupations. He noted he did not have a strong academic background. He said that, although finding it difficult to articulate his symptoms and problems, he presented completely appropriately and genuinely as having problems with his dominant right wrist. He said it was unreasonable to expect him to return full time to his previous work activities with his limitations and, at the very least, he could not be expected to perform strongly or normally in labouring type activities with his permanent limitations.

52 He said he would have permanent problems attempting labouring activities and he would either perform them in pain and at some risk of further injury, or he would not be able to maintain a work level which would keep him employed. He said he remained motivated to work and was clearly young enough to harness other skills.

53 My own view, having sighted the video on two occasions, was that the plaintiff did undertake some work that one would not expect, having regard to the matters of which he complained, such as snipping the reinforcing wire. Overall however, the work shown was not what I would regard as heavy labouring work. When he did carry items of reinforcing wire, he carried them with the weight on his left hand and he undertook more work with his left hand than one would expect of a person who is essentially right hand dominant.

54 I therefore prefer the views of Dr Baker and Dr Hopcroft to those of Professor Conolly.

55 Opportunities for retraining were suggested by Dr Prior and accepted by all of the medical experts. I have some reservations about them because of the plaintiff’s obvious learning difficulties.

56 The plaintiff’s claim for the future has been based upon a diminution of his earning capacity of one day per week. I accept this as an appropriate basis but I have discounted the sum claimed to take account of the plaintiff’s employment difficulties related to his psychiatric condition and by reason of the fact that his evidence was that he worked as a concreter when work was available and it was apparent that it was intermittent. I have also taken into account the possibility of some retraining. I have therefore allowed him a lump sum in respect of his future income loss in the sum of $75,000.

Issue seven - out of pocket expenses

57 Those incurred in the past are agreed in the sum of $2,498.65.

58 For the future, reference is made to the need for further surgery to overcome increasing disability as osteoarthritis takes hold. The cost of this has been assessed at about $5,000. The plaintiff said he would undertake that surgery if it was recommended. I have discounted this sum against the possibility that it will not proceed and I have allowed the sum of $2,500.

59 The result is a verdict and judgment for the plaintiff in the sum of $85,270.85.

Is there any argument about costs?’

DONALD: There is an argument in relation to an offer of compromise. I understand my friend doesn’t have instructions about that at this stage but if it could stand and he can make a phone call, in the event that we can resolve it today, otherwise it may be a matter which needs to be re-listed for argument.
HER HONOUR: Thank you Ms Donald, I will just take a short break and you can let me know what you want me to do.
DONALD: Thank you.
SHORT ADJOURNMENT
HER HONOUR: Ms Donald and Mr Murphy.
DONALD: Yes thank you, your Honour. There is an application on behalf of the plaintiff for an order for indemnity costs from the date of an offer of compromise. Could I hand up to your Honour the offer of compromise.
HER HONOUR: Yes, thank you.
DONALD: As your Honour is well aware, Rule 42.14 is the order which permits the plaintiff in these circumstances to seek an order for indemnity costs. My application is an order that costs should be as set out in that Rule such that there is ordinary costs up until the day after the date of that offer and then indemnity costs from that date thereafter. As I understand it, there are no exceptional circumstances and none, on my instructions or on my understanding will be raised by the defendant and that is my application that they follow the event.
HER HONOUR: Thank you. Mr Murphy?
MURPHY: Your Honour, the defendant says it is a matter for the Court.
HER HONOUR: Thank you.

60 The orders of the Court are as follows:

1.There will be verdict and judgment for the plaintiff in the sum of $85,270.85.

2.The defendant is to pay the plaintiff’s costs on an ordinary basis up to and including 1 December 2006 and on an indemnity basis thereafter.

3.Exhibits will be retained for 28 days.

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