Brien v Gould
[2007] NSWDC 159
•10 May 2007
CITATION: Brien v Gould [2007] NSWDC 159 HEARING DATE(S): 2, 3 and 7 May 2007
JUDGMENT DATE:
10 May 2007JURISDICTION: District Court - Civil Jurisdiction JUDGMENT OF: Johnstone DCJ at 1 DECISION: Judgment for the defendant; The plaintiff is to pay the defendant's costs to 14 March 2007 on the ordinary basis and thereafter on an indemnity basis CATCHWORDS: Negligence - motor accident - motor cyclist collides with partly opened door of a parked car - case turns on its own facts - no issue of principle LEGISLATION CITED: Motor Accidents Compensation Act 1999 PARTIES: Stuart Brien (Plaintiff)
Peter Gould (Defendant)FILE NUMBER(S): 2875/06 COUNSEL: Mr P Stockley (Plaintiff)
Mr W Reynolds (Defendant)SOLICITORS: Ron Kramer Associates (Plaintiff)
Lee & Lyons (Defendant)
JUDGMENT
Introduction
1. Mr Brien was injured in a motor accident as he was riding his motorcycle along Wentworth Avenue, Mascot, at about 5.00pm on 13 December 2004, when he collided with the door of a parked car that was opened in his path. He says the accident was caused by the fault of Mr Gould, the driver of the parked car, when he opened his car door suddenly, without adequately checking to ensure that it was safe to do so.
2. The defendant denies liability. Mr Gould’s car was parked close to the kerb. He checked to ensure that it was safe to open the door before doing so, by first looking in the mirror, at which time Mr Brien and his motorcycle were not visible. Furthermore, he only partly opened the door, no more than 30 to 35 centimetres. He says that Mr Brien was riding too fast and too close to his parked car, and the collision was solely the fault of Mr Brien.
3. The issues for determination as to liability are:
· Was Mr Brien injured as a result of negligence on the part of Mr Gould?
· If so, was Mr Brien guilty of any contributory negligence?
4. Mr Brien says that as a result of the accident he sustained a significant injury to his left leg. He incurred medical, hospital and other out-of-pocket expenses and will require future medical treatment. He claims to have been significantly incapacitated for gainful employment and to have lost wages and superannuation he would have otherwise earned; and that he will lose earnings and superannuation in the future. The defence says that Mr Brien fully recovered from his injury and any earnings lost are limited to the period of recuperation following the accident.
The motor accident on 13 December 2004
5. Mr Brien was riding home from work on 13 December 2004 in a southerly direction along Wentworth Avenue, travelling in the kerbside lane. It had been raining on and off, and was overcast. The road was wet. At a point between Baker Street and Page Street he collided with the open door of Mr Gould’s car, which was parked in that lane against the kerb. At that point there were three lanes. In the other two lanes, the traffic was banked back some distance, from the lights at Page Street back to and beyond Baker Street. At the time of the collision the traffic adjacent to Mr Gould’s parked car was stationary.
6. Prior to the collision, the lights at Page Street turned red and the traffic slowed and by the time of the collision had stopped. Mr Brien had been riding along the kerbside lane, passing the traffic in the two lanes to his right. He had passed one parked car in the kerbside lane and then continued travelling in that lane towards Mr Gould’s parked car, about 20 to 30 metres ahead. There were further parked cars ahead of Mr Gould’s parked car, before Page Street. He said that as he approached Mr Gould’s car, he was travelling about a foot and a half inside the white lines between that lane and the centre lane, and he prepared to slow down and move over into the middle lane. He observed a person’s head in the parked car and realised someone was sitting in the driver’s seat. When he was 5 metres away, or at least something less than 10 metres, he saw the door of the parked car begin to open. He hit the brakes, but hit them too hard, and the rear wheel locked up and started to skid. His motorcycle deviated to the right at a 35 to 40 degree angle. As the motorcycle skidded forward, his left ankle, which was on the foot-peg of the motorcycle, clipped the open door about 6 inches from the bottom.
7. It was Mr Brien’s evidence that his motorcycle came to an abrupt halt, having been trapped between the parked car on his left and a stationary car in the middle lane on his right, with his leg pinned against the open car door. His ankle was only released when Mr Gould pulled the door closed. His leg was broken.
Was there negligence causing injury to Mr Brien?
8. It was submitted for Mr Brien that Mr Gould should have foreseen that a motorcycle might be approaching in the kerbside lane, and he was negligent in opening the door of his parked car without ensuring that the lane was clear.
9. It was Mr Brien’s case that the door had been fully opened by Mr Gould.
10. I do not accept that the door had been fully opened by Mr Gould, and I prefer his version, that he had only partly opened the door, no more than 30 to 35 centimetres. The damage to the door, along the outside of the door, was inconsistent with the door having been fully opened. Had the door been fully opened, as alleged by Mr Brien, such damage could not have occurred.
11. I reject the version of the accident given by Mr Brien, to the effect that the motorcycle was trapped between the door of the parked car and the stationary car in the middle lane on the right. Apart from the improbability of that version, it is totally inconsistent with the evidence of Mr Gould and the independent witness, Mr Trajcevski, the driver of the other car. It was his evidence, which I accept, that his car was at least one car length in front of Mr Gould’s car, and Mr Brien’s motorcycle ended up leaning against his front left wheel hub.
12. I formed an adverse view as to the credit of Mr Brien, and where his version differs from other evidence, particularly that of Mr Gould, I preferred that other evidence. I find that it was the intention of Mr Brien to travel past Mr Gould’s parked car, in the kerbside lane, and he had no intention of moving into the middle lane at that point. I am satisfied that he was using the kerbside lane to get his motorcycle past the stationary traffic in the middle lane with a view to getting as close to the traffic lights as he could, before they turned green again.
13. I am satisfied, having regard to the distance travelled after Mr Brien applied his brakes, up to and some considerable distance beyond the open door, that he was travelling at a considerable speed, more probably than not in excess of 15 kph, if not the 40kph estimated by the police. I find, therefore, that Mr Brien was travelling too fast, particularly having regard to the conditions, between a parked car on his left and stationary traffic on his right, too close to the parked car. He lost control of his motorcycle and collided with the partly opened car door. Had he not attempted to pass the parked car in the kerbside lane the risk would not have eventuated at all. Having regard to the fact that his ankle clipped the door, if he had travelled on a line that was further from the parked car, or at a slower speed, he could easily have avoided the door. It follows that there was no causal relationship between the accident and anything that Mr Gould did or did not do.
14. Even if there had been some causal relationship between the accident and Mr Gould having partly opened the door of his parked car, without having ensured there was nothing approaching in the kerbside lane, in my view Mr Brien would be guilty of substantial contributory negligence. I consider it would be just and equitable that any damages recoverable by him should be considerably reduced.
15. The relative culpability of Mr Brien for the accident significantly outweighs anything Mr Gould did. The factors relevant to this process of evaluating relative contribution include those already referred to such as speed, the poor conditions and the proximity of the motorcycle to the parked car. In addition, there was the knowledge on Mr Brien’s part that there was someone in the car, who might unexpectedly emerge, the previous accident when he was hit by a car door opening unexpectedly, and his knowledge from the manual that it was contrary to road safety to travel between parked and stationary vehicles. As against this conduct, Mr Gould opened the door a short distance, having checked first in the mirror and being satisfied it was safe to do so. I would find, therefore, that Mr Cook was guilty of contributory negligence such that any damages recoverable by him ought to be reduced by 75%.
16. I am, however, satisfied there was no negligence on the part of Mr Gould that caused or contributed to the accident, and there will be a verdict for the defendant.
Damages
17. I am required, however, to assess the damages against the event of a successful appeal.
18. Mr Brien was born on 28 August 1963. He is now 43. He is not entitled to damages for non-economic loss, as the required statutory threshold was not satisfied: s 131 and s 132 Motor Accidents Compensation Act 1999.
19. The defence conceded the calculation of past out-of-pocket expenses in the sum of $22,687.82, and made no submissions about them.
20. I find that those expenses were incurred as a result of Mr Brien’s injury, and that they were reasonably incurred. I therefore allow damages for past out-of-pocket expenses in that amount.
21. There are two remaining issues concerning the assessment of damages. The first is whether there was any loss of earnings beyond 10 October 2005, when Mr Brien went back to work, or alternatively, beyond 13 June 2006, when he resigned his job at Vending Express, and whether there is any permanent diminution in Mr Brien’s earning capacity. The second is whether he is likely to incur any future medical expenses.
22. I deal first with economic loss.
23. Mr Brien had been in continuous employment since leaving school in 1979, spending 21 years in the army as a quartermaster/storeman. He retired from the army at the end of 2003, and receives a retirement pension and a disability pension for injuries and problems that he sustained during his army career. He also suffers from a serious heart condition, for which he requires medication.
24. Mr Brien claims past economic loss of $47,745.00 plus lost superannuation, on the basis of an inability to work in his pre-accident position. He also claims a diminution of his earning capacity for the remainder of his working life, which he calculates at $119,646.00, plus lost future superannuation.
25. It was submitted that he has had, and continues to experience pain, discomfort and disability in his left lower leg resulting from the accident, which precludes him from working the hours and performing the duties he was carrying out at Vending Express at the time of the accident. In particular, he is unable to perform overtime. He is at an economic disadvantage on the open labour market.
26. The medical support for Mr Brien’s case comes principally from Dr Deveridge, who was qualified as a medico-legal expert, and saw Mr Brien once at the request of his solicitors. His report was in my view, cursory and superficial, and was at odds with the other medical evidence. I prefer the non-partisan evidence of the MAS medical assessor, Dr P Burke, and the treating orthopaedic specialist responsible for Mr Brien’s post-operative care, Dr Harris. In the opinion of Dr Harris, Mr Brien made an uneventful recovery and has been capable of performing normal unrestricted duties since 9 January 2006.
27. I am not satisfied, therefore, that Mr Brien suffered from any physical or economic incapacity beyond 2005. I find, therefore, that Mr Brien did not lose any income by reason of the injuries he sustained in the accident after resigning from Vending Express. Nor am I satisfied that he will suffer from any diminution of his earning capacity in the future by reason of that injury.
28. As to the future, I find that the following assumptions about Mr Brien’s earning capacity accord with his most likely future circumstances, but for his injury: he will obtain a forklift driver’s licence in the immediate future, and will obtain work as a forklift driver or as a storeman and work till the age of 65, earning as much, if not more than he would have earned had he remained at Vending Express, including income derived from overtime at the same rate as before the accident: s 126(1) of the Motor Accidents Compensation Act 1999.
29. For these reasons I allow past economic loss, calculated in accordance with the Plaintiff’s Schedule of Damages, in a sum of $28,770.00 together with lost superannuation of $2,877.00, a total of $31,647.00.
30. I do not make any award of damages in respect of the future, as I find there has been no reduction in his earning capacity beyond 2005.
31. I turn to consider whether Mr Brien will reasonably require any future medical, hospital or other related treatment. There are two claims: one for orthotics in the sum of $3,400.00, and the other for the cost of removal of the surgical hardware in his left leg in the sum of $3,930.00.
32. The defence submitted that there was no evidence that Mr O’Brien proved the need for future orthotics. In my view there was. I am satisfied that his need for orthotics arose only subsequent to the accident, and more probably than not is required due to the slight backward bowing of the tibia at the fracture site, noted by Dr P Burke. I therefore allow the claim for future orthotics.
33. So far as a future operation to remove the screws implanted in his left leg is concerned, I am satisfied that there is a low possibility that Mr Brien will have such an operation within the next few years, which I assess at around 25%. On this basis I allow $1,000.00 for that chance.
34. I find, therefore, that Mr Brien’s reasonable needs for future out-of-pocket expenses in an amount of $4,400.00.
35. The assessment of total damages is, therefore, as follows:
Non-economic loss (general damages) Past out of pocket expenses Future out of pocket expenses Past economic loss Future economic loss Nil Total damages
Disposition
36. For these reasons I find for the defendant and enter a verdict for the defendant.
37. I direct the entry of judgment accordingly.
38. The plaintiff is to pay the defendant's costs to 14 March 2007 on the ordinary basis and thereafter on an indemnity basis.
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