Clark v. Bellert & Anor
[2008] QSC 276
•12 November 2008
SUPREME COURT OF QUEENSLAND
CITATION:
Clark v Bellert & Anor [2008] QSC 276
PARTIES:
NOEL ALLAN CLARK
(plaintiff)
v
DIANNE MAY BELLERT
(first defendant)
ALLIANZ AUSTRALIA INSURANCE LIMITED
(second defendant)FILE NO/S:
6230/08
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
12 November 2008
DELIVERED AT:
Brisbane
HEARING DATE:
3-4 November 2008
JUDGE:
Martin J
ORDER:
JUDGMENT FOR THE PLAINTIFF IN THE SUM OF $57,254.47.
CATCHWORDS:
NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – INTERSECTIONS AND JUNCTIONS – APPORTIONMENT - where cyclist pulled out from behind a cane truck at an intersection – duty of driver to act reasonably – duty of driver to act reasonably - whether driver should have been travelling slower.
NEGLIGENCE – DAMAGE – GENERALLY - where plaintiff was in receipt of a disability pension prior to the accident – the period of time for which past economic loss should be allowed - where plaintiff was suffering epileptic seizures as a result of the accident – level of care and supervision required.
Transport Operations (Road Use – Road Rules) Regulations 1999,
Byrnes v Snare (1986) 60 ALJR 507
Cheetham v Bou (1989) 10 NVR 242
McLean v Tedman (1984) 155 CLR 306
Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529
Sibley v Kais (1967) 118 CLR 424
Trompp v Liddle (1941) SR (NSW) 108
Wilkie v Redford [1999] QSC 119COUNSEL:
M Grant-Taylor S.C., with him L T Barnes, for the plaintiff
D A Reid for the defendantsSOLICITORS:
Kerin & Co for the plaintiff
Sciaccas for the defendants
At about 4 pm on 9 August 2001 the plaintiff, Noel Allan Clark, was riding his bicycle in a south-easterly direction along Alice Street in Maryborough. The weather was fine. At the same time, the first defendant, Dianne May Bellert, was driving her Holden Rodeo dual cab on Alice Street in the opposite direction. They collided and Mr Clark suffered serious injuries for which he is claiming damages. Both liability and quantum are in issue.
The collision
On the day in question Mr Clark was on his bicycle and was following a semi-trailer which was loaded with full cane bins in a south-easterly direction along Alice Street towards the intersection of that street with March Street. Alice Street runs approximately northwest-southeast, with one lane of traffic in each direction. On either side of the intersection with March Street there is, in addition to the traffic lane, a narrow parking lane. Alice Street is about 12.9 metres wide, each traffic lane is about 3.55 metres wide and each of the parking lanes is about 2.9 metres wide. Mr Clark’s account of the circumstances of the accident and, in particular, his estimate of relevant distances, times and the speed of Mrs Bellert’s vehicle was unreliable. Mr Clark suffered substantial injuries to his skull and had to undergo extensive surgery. He gave evidence that, before the accident, he had a very good memory but that, since the accident, he has had great trouble remembering events and other matters, such as when to take medication.
I noted that he was able to answer some questions and offer information when the answers suited him and that he required little or no time to do so. When asked questions (especially concerning social security payments) which were contrary to his interests, he sometimes delayed answering them and frequently prevaricated in his answers.
Mrs Bellert gave evidence about her speed and her capacity to see behind the semi-trailer travelling towards her. I do not accept her evidence that her vision of what was behind the semi-trailer was only obscured to the extent of one or two metres. The length of the semi-trailer and its distance from Mrs Bellert must have meant that she would not have been able to see what, if anything, was behind the semi-trailer for some considerable distance. I do, though, accept her evidence that her speed as she approached and went through the intersection was 50 to 55 kph. It is consistent with other evidence. She said that she did not slow down as she went through the intersection.
As to the circumstances immediately preceding the collision I am assisted by the observations of John Stevens, an independent witness. I accept his evidence as an accurate account of what occurred. He had been parked in Alice Street facing the same direction as the course of travel of the semi-trailer and Mr Clark. He noted Mr Clark particularly as the semi-trailer and the plaintiff passed Mr Steven’s parked vehicle. After Mr Stevens pulled out from the footpath, he followed behind Mr Clark in his progress along Alice Street towards its intersection with March Street.
He saw the following:
(a) Mr Clark was riding his bicycle very close behind the semi-trailer;
(b) as the semi-trailer approached the intersection of Alice and March Streets, Mr Clark moved towards the left hand side of the rear of the semi-trailer;
(c) at about the same time, the semi-trailer’s left indicator came on and then;
(d) Mr Clark returned to a position behind the centre of the rear of the semi-trailer, and
(e) shortly after that, Mr Clark moved to the right of the rear of the semi-trailer and then crossed the marked centre line of Alice Street onto his incorrect side;
(f) shortly after that manoeuvre, Mr Clark was hit by the vehicle driven by Mrs Bellert.
Another independent witness, John Davidson, had been travelling along March Street towards Alice Street. He had come to a halt at the stop sign facing him at the intersection of March and Alice Streets. On his right, he observed the semi-trailer and, behind it and to its left, he saw Mr Clark on his bicycle. He did not see the collision as it was concealed from him by the semi-trailer as it turned left from Alice Street into March Street.
I am satisfied that Mr Stevens’ account, supported as it is on some points by Mr Davidson’s evidence, correctly recalls the sequence of events so far as the plaintiff’s conduct is concerned.
In those circumstances then, some might consider it difficult to understand how the plaintiff could say that the first defendant was negligent. The plaintiff relied on two aspects of Mrs Bellert’s conduct to establish negligence. I should note, at this point, that Mr Clark’s case was that liability should be apportioned 60:40 against him. The two points upon which it was submitted that negligence had been established against Mrs Bellert was:
(a) that Mrs Bellert had not been travelling “as near as practicable to the far left side of the road” (contrary to s 129, Transport Operations (Road Use – Road Rules) Regulations 1999), and
(b) that, in her approach to and passage through the intersection, Mrs Bellert did not slow her speed at all until after she had first observed the plaintiff.
Mrs Bellert’s evidence was inaccurate in some respects, such as the extent of visibility behind the semi-trailer, but I accept her account of events as generally reliable. I accept that she had no warning that as she proceeded in a north-westerly direction along Alice Street that the plaintiff would suddenly emerge from behind the semi-trailer as it was turning from Alice Street into March Street. At the point where she saw Mr Clark riding his bicycle across the centre line, she only had some 15 metres between her car and his bicycle. She said she only had time to break heavily and veer to her left. Mrs Bellert said that, in doing so, the tyres of her vehicle left skid marks on the roadway. She was not challenged on that. It was suggested that her answers to questions about the proximity of a school should affect her credibility. I do not agree. Questions put to her on that topic were not completely clear and her answers were not evasive.
She agreed that she had been travelling in the centre of the lane available to her and that, had she wished, she could have moved further to the left. It was submitted that the semi-trailer “so completely occluded her view of any other traffic or pedestrians travelling in the same direction as the truck” that it called for “extraordinary vigilance … in the form of, at the very least, her slowing her vehicle to a snail’s pace and moving further to her left hand side of the road”.
The parties and Mr Stevens gave evidence about where the point of impact was on the roadway. There was no agreement among them. Mr Stevens marked on Ex 1 the part of the road upon which he saw the plaintiff immediately after the collision. If one was to extend the gutter lines in both Alice Street and March Street so that those lines formed a rectangle, then the part of the road upon which Mr Stevens saw the plaintiff after the accident was to the northwest of the intersection in Alice Street. The difference between the parties was that Mrs Bellert said that she was either almost through or through the intersection when the collision occurred whereas Mr Clark said that the collision occurred in the intersection. Mr Clark’s evidence on this point was that, by the time he saw Mrs Bellert, he was already committed to the turn. His evidence was that, upon seeing Mrs Bellert, he started to peddle harder. In doing so, he took himself even further into her path. Clearly, it would have been open to him to wait until the truck had completed its turn, or had turned sufficiently into March Street to clear the traffic lane in Alice Street, so that he would enter the intersection on his correct side of the road. He explained his decision not to wait in the following way:
“I was coming into an intersection where it's a main traffic intersection and to - to my knowledge you're supposed to not hold traffic up in the traffic road rules, you know. It's necessary to move and to, others if you're travelling 20 kph and the road rule's 60, you're supposed to be doing 60, the point being that I didn't want to hinder traffic when I got to that point.”[1]
[1]T 1-64, l 1-8.
I accept the plaintiff’s evidence that the collision occurred when he was on his incorrect side of the road and, taking into account all that has been said by the witnesses, I find it unlikely that the plaintiff would have been able to pedal from behind the truck and travel along side it in order to get into the intersection before the collision occurred. I accept Mrs Bellert’s evidence that the collision occurred when she was through or almost through the intersection.
The plaintiff advanced, as an element of the first defendant’s negligence, a failure to travel as near to the left as practicable. The evidence which I accept disclosed that Mrs Bellert could have moved some 75 centimetres to the left without leaving the lane. She was in the centre of her lane. She was not too close to the centre of the road. Her course of travel was, given the existence of a parking lane, not unreasonable.
Negligence – appropriate principles
An authority frequently cited in cases such as this is the High Court’s decision in Sibley v Kais.[2] It was not a decision on appeal but, rather, it was the determination of an application for special leave to appeal which was, in the end, refused. Nevertheless, the statements made in arriving at that decision must be accorded considerable weight and they have, quite properly, been followed in many decisions since.
[2](1967) 118 CLR 424.
It is worth recounting, briefly, the facts in that case. Sibley and Kais collided in an intersection. Sibley’s vehicle was about to enter the intersection when Kais’s vehicle did so at a speed of 30 to 35 miles an hour. Sibley, who was driving at 20 to 25 miles an hour as he approached the intersection, found no traffic seeking to enter the intersection from his right hand side but was “late in looking to his left” – the direction from which Kais was coming. He applied his brakes but it was too late and the vehicles collided. In the Full Court of Supreme Court of Western Australia, it was held that Sibley’s responsibility for the accident should be assessed at 25 per cent.
The general statements of principle most often referred to are as follows:
“The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case.
…
The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to ‘reasonable care’ is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.”[3]
[3]At 427.
A more recent decision by the High Court with respect to a collision near a T-intersection can be found in Byrnes v Snare.[4] In that case Byrnes was driving along a subsidiary road toward a T-intersection formed by the subsidiary road and a major road. His intention was to make a right hand turn at the intersection. There was a give way sign facing the direction from which he was coming and which was set some distance back from the edge of the major road. At about the same time Snare was driving along the major road. Visibility at the give way sign was bad, partly because it was set back from the intersection and partly because the vision of a driver looking to the right was obscured by some trees. Byrnes said that when he was about five or six feet from the edge of the major road he was able to see down the road to his right for a distance of 75 to 100 yards. He saw nothing coming and proceeded to drive onto the intersection and when he was half way across the road he saw a car coming very fast on his right. Snare said that she was travelling at about 95 to 100 kph and that when she was about 25 to 30 paces from the intersection she saw Byrnes’ vehicle emerge onto the highway but, knowing that there was a give way sign believed that the vehicle would stop. There was insufficient time for either vehicle to avoid the collision that occurred.
[4](1986) 60 ALJR 507.
The trial judge accepted Snare’s evidence and found that she was not driving at an excessive speed. Gibbs CJ, with whom the other members of the Court agreed, said:
“It is true, however, that on any view the intersection was a potentially dangerous one because of the lack of visibility, as the learned trial judge found. But he nevertheless found that the respondent was not travelling at an excessive speed. The argument that the latter finding was erroneous is that the respondent, knowing of the potential danger, should have reduced speed to guard against it. However, the respondent was travelling within the speed limit. She knew that the intersection was controlled by the give-way sign and until she saw the appellant's vehicle, had no reason to apprehend danger. She did not fail to exercise due care by proceeding at the speed at which she was travelling.
The learned trial judge's finding that he accepted that the respondent saw the appellant's vehicle when it had just nosed out on to the highway, which was her first opportunity to see it, means that she was keeping a proper look out.
In those circumstances, the learned trial judge and the learned members of the Court of Appeal were justified in concluding that the cause of the collision was the fact that the appellant drove in front of the respondent, who had the right of way and was proceeding with due care and who then, in the agony of the moment, naturally swerved to avoid him.”[5]
[5]At 508.
The latter case differs in a couple of important factual issues from Sibley v Kais. First, in Byrnes it was found that the respondent was not travelling at an excessive speed. Secondly, in Sibley, Sibley could have seen, but did not see, Kais. In Byrnes, Snare could not have seen Byrnes until the car being driven had nosed out onto the highway.
When considering the circumstances of this case, one must also bear in mind that Mrs Bellert, as the driver of a motor vehicle, was in a position where, in the event of an accident, she could be responsible for inflicting a much greater damage than Mr Clark, whose conduct was not particularly likely to cause injury to others.[6]
[6]Cheetham v Bou (1989) 10 NVR 242; Wilkie v Redford [1999] QSC 119.
Conclusions on negligence
“The standard of care expected of the reasonable man requires him to take account of the possibility of inadvertent and negligent conduct on the part of others.”[7]
[7]McLean v Tedman (1984) 155 CLR 306 at 311.
That standard applied to Mrs Bellert in these circumstances. But Mr Clark was also required to exercise care. He did not. He engaged in a manoeuvre which had him emerging from behind a large truck which obscured the view of any person driving in the opposite direction. He failed to keep a proper lookout. That failure meant he could not take appropriate action to avoid the accident. His attempt to overtake a truck while it turned left at that particular intersection was an inherently dangerous action and, in the circumstances, reckless.
One of the questions I must determine is whether Mrs Bellert’s conduct contributed to the accident. As I have noted above, it was submitted by the plaintiff that she should have proceeded through the intersection at “a snail’s pace”. That is not necessary in order for her to discharge her duty of care. In these circumstances, though, Mrs Bellert was denied the opportunity to observe traffic coming towards her by virtue of the size of the truck. A driver, when confronted by that situation, must be alert to the extent to which the capacity to keep a lookout has been diminished. As was said by Jordan CJ in Trompp v Liddle:[8]
“A driver is entitled to assume that other drivers will observe the rules of the road. This does not mean that he may drive at a pace he chooses so far as [cars] coming in on his left are concerned, or with complete indifference to the possibility of a car somewhere emerging from the side road as a result of accident, miscalculation, ignorance or recklessness. It means that it is unreasonable for him to act on the assumption that other drivers are obeying the rules unless there is something that should make him realise they are not.”
[8](1941) SR (NSW) 108 at 109.
While Mrs Bellert did not need to slow to a snail’s pace she should have reduced her speed.
In considering this matter I have to bear in mind the principles enunciated by the High Court in Podrebersek v Australian Iron & Steel Pty Ltd[9]
“The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man … and of the relative importance of the acts of the parties in causing the damage … It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance.”
[9](1985) 59 ALR 529 at 532-533.
The degree of departure from the appropriate standard of care was far greater by Mr Clark than the departure by Mrs Bellert. His conduct was almost completely responsible for the accident. I apportion liability for the accident 10 per cent to the defendant and 90 per cent to plaintiff.
Quantum
Mr Clark was born on 12 November 1975. At the time of the accident he was 25 and is almost 33 now.
Prior to the accident he had a significant medical history.
An assessment which was before, but close to, the time of the accident was one made by Dr Heugh for the purposes of Centrelink. That assessment was made on 4 May 2001. Dr Heugh described:
(a) constant back pain due to L5/S1 disc bulge indenting the inferior aspect of the thecal sac,
(b) chronic tendonitis of his right forearm/wrist,
(c) psychological agitation with reactive depression,
(d) working at his own pace on his own house caused pain and required analgesics,
(e) there had been no improvement since 1996, and the likelihood was that he would remain unfit for work for at least a period of two years when there should be another review.
Dr Landy examined Mr Clark in July 2003. He said that the plaintiff had suffered an extensive injury to his face and a base of skull fracture bilaterally with fractures through the floor of each middle cranial fossae with bilateral hemorrhagic contusions of each frontal lobe. Dr Landy considered, on a combined assessment, that he had suffered a 40 per cent impairment of whole person.
Mr Clark has, as a result of the accident, lost his sense of smell; he suffers acute anxiety for which he is prescribed medication; he cannot drive; he is left with a prominent scar from ear to ear over the top of his skull; and, perhaps most significantly, suffers from intermittent and unpredictable epileptic seizures.
Other medical evidence supported findings that he has decreased memory, lack of forward planning and poor ability to organise himself.
The plaintiff had a very patchy employment record prior to the accident. There were periods of brief employment of, in some cases, four months and eight months. He appears to have ceased working with the Maryborough City Council in November 1996 due to problems associated with a wrist injury suffered in about the end of 1993. Medical reports obtained by Centrelink at the relevant time demonstrate that his level of incapacity appeared to increase after he ceased to work in November 1996. He was on a disability support pension at the time of the accident having been effectively out of the workforce for about five years.
His education finished during his 11th year at high school and he has no skills or trade qualifications. The work which he had been doing was of a labouring nature or delivery type work.
On an examination of all the employment records and relevant medical reports, the agreement by the parties as to a figure for past economic loss is, in my view, appropriate. Both parties were of the view that past economic loss should be assessed at the rate of $100 net per week. They differ in the period of time over which that allowance should be made. On behalf of the defendants it was said that, in light of the report of Dr Heugh it was extremely unlikely that the plaintiff would have been working at all for a period up until about May 2003, that being the time suggested by Dr Heugh for the next review of the plaintiff’s condition. The plaintiff submitted that past economic loss should date from the accident.
I preferred the plaintiff’s assessment on this point on the basis that whatever capacity the plaintiff may have had at the time of the accident, the injuries he suffered meant that there was no prospect of his obtaining work at all during that period of time and he was, thereby, denied that capacity to obtain work. I accept, also on the same basis, the plaintiff’s calculation of future economic loss at the rate of $100 per week.
The area upon which there was most debate was that with respect to the plaintiff’s care needs. Evidence was given by Ms de Campo and Ms Beaver. The latter’s report was written in the light of a period when the seriousness and consequences of the plaintiff’s seizure activity did not appear to have been obvious. Her calculation of appropriate care does not, on the material before me, adequately allow for the problems which the plaintiff will continue to experience, notwithstanding the medication which he takes. I accept the plaintiff’s submission, on the basis of Ms de Campo’s report, that future care needs for the plaintiff should be addressed by a regime of care which involves 10 hours per week. I have allowed $25 an hour.[10] That has been discounted at 5 per cent per annum over 50 years.
[10]Hick v Frisby & Anor [2008] QSC 161 at [73]-[81].
I will allow for past care on the basis submitted by the plaintiff which demonstrates a reduction in care over that period of time since the accident and is an allowance which recognises the changes in the plaintiff’s condition since the accident.
I quantify the plaintiff’s damages as follows:
Head of Claim Amount General damages (pain, suffering, loss of amenities, scarring) 80,000.00 Interest (2% on $40,000 over 2,652 days since accident) 5,812.00 Past economic loss 37,700.00 Interest (none allowed in light of Centrelink payments) 0 Past loss of employer’s contributions to superannuation 3,393.00 Future impairment of earning capacity 84,500.00 Future loss of employer’s contributions to superannuation 7,605.00 Past care and services (as per Plaintiff’s schedule) 79,460.00 Interest at 2.715% on $79,460.00 over 2,622 days since discharge from hospital 15,497.00 Future care and services 244,000.00 Agreed future expenses 10,000.00 Agreed Medicare Australia charge 1,465.70 Agreed out of pocket expenses 2,600.00 Interest at 2.715% on $2,600 over 2,652 days 512.00 TOTAL $572,544.70
I give judgment for the plaintiff in the sum of $57,254.47. I will hear the parties on costs.
0
3
1