Douglas v Mondon

[2001] QSC 343

SUPREME COURT OF QUEENSLAND

CITATION:  Douglas v Mondon [2001] QSC 343

PARTIES:  DAVID JOHN DOUGLAS

(Applicant/Plaintiff)

v

LEONARD FRANCIS MONDON

(First Respondents/First Defendants)

and

SUNCORP METWAY INSURANCE LIMITED

(Second Respondents/Second Defendants)

FILE NO:  S89/2000

DIVISION:  Trial Division

DELIVERED ON:         10th September 2001

DELIVERED AT:          Mackay

HEARING DATE:          12 & 13 June 2001

JUDGE:   Dutney J

ORDERS:  Judgment for the plaintiff against the second defendant for the sum of $210,982.37

CATCHWORDS:            PERSONAL INJURY – NEGLIGENCE – DAMAGES

CONTRIBUTORY NEGLIGENCE – Whether plaintiff or first defendant was the driver of the vehicle at the time of the accident – Plaintiff knew first defendant was affected by alcohol – Whether contributory negligence to allow him to drive.

COUNSEL:  DV McMeekin SC for the Applicant/Plaintiff

SC Williams QC, with him BA Harrison for the

Respondents/Defendants

SOLICITORS:                Macrossan & Amiet for the Applicant/Plaintiff

Barry Beaverson & Stenson for the

Respondents/Defendants

[1] DUTNEY J:  The plaintiff suffered serious injury when a series 2A Land Rover utility in which he was an occupant rolled off the edge of a culvert on Beach Road at Sarina on 31 July 1999.  Liability and quantum are in issue.  The liability issue is easily stated.  Was the plaintiff the driver or the passenger in the vehicle?  The resolution of the issue is rather more complicated.

[2] The plaintiff suffered a head injury in the accident.  The detail of it is more appropriately dealt with when dealing with quantum.  The importance of it to this issue is that the plaintiff claimed to have had no recall of the event, nor, indeed of the day on which it occurred for a significant period after the incident.  More recently he has claimed to have recovered what he described as a “very patchy” recollection but which seemed to me while he was giving evidence to be rather more complete.

[3] In summary form, this is the version the plaintiff gives.  The plaintiff first recalls receiving a call from Mr Mondon mid morning asking him to go to the Sarina Bowls Club to get a bottle of rum and a carton of VB.  Prior to that the plaintiff recalls only that he had been drinking alone at home.  The plaintiff recalls that he waited for his son to come home from work in the Land Rover to drive him to the bowls club.  The plaintiff recalls staying at the club for a while and then getting the bottle of rum and the carton of VB and having his son, Cameron, drive him to Mondon’s residence.

[4]  On  arrival  at  Mr  Mondon’s  residence,  the  plaintiff  says  he  recollected  Mr

Mondon walking naked from the shed to the house and putting on a pair of jocks

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and shorts.  The plaintiff and two sons, Cameron and Joshua had arrived in the Land Rover.  The plaintiff and Cameron got out of the vehicle.  Mr Mondon offered the plaintiff a fifty dollar note and a twenty dollar note for the rum and beer which the plaintiff refused.   Mr Mondon and the plaintiff then commenced throwing eggs at the Land Rover in which Joshua was still sitting.  The plaintiff’s next claimed recall was going back to his house in Beach Road with Mr Mondon and the boys.  On arrival he said he saw Clarisse Thompson and Brett Poulter. He recalled teasing Clarisse about her name because it bore some similarity with the name of his former wife, Lourice.  Mr Mondon then wanted to go to visit a Debarah Kelly who lived elsewhere for a bar-b-que.  Ms Kelly features later in the tale.

[5]  The plaintiff recalls getting into the driver’s side of the Land Rover.  Mr Mondon got into the passenger side.  The plaintiff then drove the vehicle to the gate.  At that point the plaintiff says he did not want to continue driving because of his level of intoxication and told Mr Mondon.  Mondon said,  “Get out you weak cunt, I’ll drive” and tried to pull the plaintiff over him in the front seat.  There wasn’t room and the plaintiff says they got out and then the plaintiff remembers sitting  in  the  passenger  side.    He  alleges  that  Mr  Mondon  then  reversed backwards to run over the neighbour’s letterbox.  He then drove forward saying,

“I hate fucking guide posts too” and lined up the guide posts on the side of the

road.  The plaintiff has no recall beyond that point.

[6]  A short distance past the plaintiff’s gate on Beach Road was a bridge over Bell

Creek.  There was a drop into a culvert at the side of the road adjacent to the

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bridge of about 2m.  The drop reduced steadily as one got nearer the plaintiffs

driveway until the shoulders of the road were level with the bitumen.

[7]  The  major  contest  was  whether  the  plaintiff’s  alleged  recall  of  events  was genuine and whether he or the first defendant was driving the Land Rover when it rolled off the side of the road near the bridge and landed on its side.  The plaintiff was trapped in the passenger side of the vehicle after it came to rest with his feet in the passenger footwell.  His head was trapped between the side of the vehicle and the door.  Mr Mondon was clear of the vehicle when first seen after the accident.  His version is that he was in the passenger seat and anticipating the vehicle rolling off the road he opened the passenger door and jumped clear.

[8]  Dr Joan Lawrence saw the plaintiff on 30 December 2000.  In the course of

interviewing the plaintiff Dr Lawrence extracted the following account:

“David Douglas reported that, since he had recommenced Zoloft  about  3  months  ago,  his  thinking  had  been  much clearer, racing and jumbled thoughts had seemed to settle and  he  began  to  have  patches  of  recall  and  was  clearly striving to reconstruct events leading up to the accident.  He has several firm points of recall, mainly that he had joined Cameron up at the Bowls Club that day, driving the Land Rover car and an image of a letterbox or mailbox and his friend, Len Mondon using the words, ‘letterbox and seeing a guidepost’.  As he reconstructs it now, his son Cameron was with him.  He was contacted by his friend, Mondon, who asked him to buy a bottle of rum and 2 cartons of beer and bring them to his home.  Douglas says he thinks he had a few beers at home, and possibly 2 rums at the bowls club, where the liquor was purchased.  It was at this time that he recalls signing Cameron up for social membership, because if he couldn’t drive, then his son would be able to drive and also would be able to obtain alcohol.  He thinks Cameron drove him to Len’s place and there he detailed various activities and  interactions  between  Len  and  his  talk  about  his girlfriend, Debbie, as well as activities such as throwing eggs at their Land Rover car.  He said that Cameron eventually

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drove them home and he recalls some teasing activity by Len of Cameron’s friends who came to visit.  Len wanted to be driven somewhere else but Cameron wanted to return home with his friends.  Douglas says that he first got in the driver’s seat with Len in the passenger seat, but then decided not to drive beyond the limits of his property.  He believes that Len then  took  over  the  driving  of  the  car.    Len  was  abusive towards him for not driving.  He has some recollection of Len  driving  down  the  driveway  and  getting  on  to  the bitumen road and then seeing his neighbour’s mailbox and the sound of Len’s voice talking about the ‘f,,,, letterbox’, a different expletive to that which Douglas uses.  Len decided to  reverse  over  the  letterbox  which  Douglas  objected  to. Similarly, he said that Len then began to indicate that he would knock down the guidepost.  He does not remember anything after this.”

[9]  Dr Lawrence’s opinion was sought as to the reliability of the plaintiff’s claimed recollections when for a long period after the accident he claimed no recollection at all.  Dr Lawrence concludes, “Thus, in my opinion, whilst I accept that there may be a degree of exaggeration or amplified error by David Douglas in his account, my own opinion was that his account as given to me was provided in a manner which I accepted as genuine but patchy recall consistent with the facts. However, I cannot exclude the possibility that there is some degree of conscious distortion of the memories occurring, particularly if there is an issue of great significance attached to the matter.”

[10] Dr Lander provided a report to the plaintiff’s solicitors without the benefit of actually seeing the plaintiff.  Dr Lander acknowledged the advantage of being able to see the plaintiff before expressing a view as to the likelihood of his recollection being genuine.   Dr Cameron provided a report to the defendant’s solicitors, again without seeing the plaintiff.  Dr Cameron regarded the pattern of memory recall as being unusual.  In essence he doubted that the memories were

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genuine although he admitted in oral evidence that no one could say for sure.  Mr Salzman completed the evidence on this point.  Mr Salzman saw the plaintiff for assessment.  He agreed with Dr Lawrence that the recollections were more likely to be real.

[11] There is no doubt that in evidence, particularly cross examination, the plaintiffs recall was apparently greater than ever.  I am prepared to accept that some recollection is present.  I found Mr Mondon a most unsatisfactory witness.  I did not believe his evidence.  The plaintiff, however, was also not a witness in whose credibility I would place much store.  I am, however, prepared to accept his version to the extent that it has independent corroboration.

[12] There is a deal of corroborative evidence.

[13] Ms Kelly, to whom I earlier referred gave evidence that at a time after the accident Mr Mondon spoke to her and told her that he had been the driver.  In cross-examination she said that on other occasions he told her he was not the driver.  This evidence was consistent with a statement Ms Kelly had given to the plaintiff’s solicitors dated 7 April 2000.  On 6 October 2000 she gave another statement to the defendants’solicitors in which she claimed to be drunk when she gave the first statement and had lied.

[14] In oral evidence Ms Kelly said that the true statement was the earlier one and that she had been coerced into retracting it later by threats from Mr Mondon.  Having seen both Ms Kelly and Mr Mondon in the witness box I accept Ms Kelly’s oral

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evidence and explanation for the inconsistent statement given to the defendant’s

solicitors.

[15] There is other corroboration of the plaintiff’s recall.  A Mr Poulter, a friend of Cameron Douglas, observed the vehicle leave the house on the evening of the accident.  The plaintiff was driving.  The vehicle stopped at the gate.  He saw legs passing behind the vehicle.  He could not see the person or persons to whom the legs belonged because of the foliage nor could he say whether the legs were two people crossing or one person walking from one side of the car to the other and then back again.   The effect of his evidence is that when the vehicle got to the gate at least one person and possibly two got out and walked across the line of the vehicle.

[16] The strongest evidence against the plaintiff’s version of the facts is that of the independent  witness,  Thomas.    Mr  Thomas  was  on  his  way  to  Sarina  from Grasstree Beach when he observed a motor vehicle on the road in front of him.  It was the plaintiff’s  Land  Rover.    The  vehicle  was  then  in  the  middle  of  the carriageway travelling slowly.  The Land Rover then began to veer to the left where it clipped a guardrail on the leading edge of the Bell Creek Bridge and rolled onto its left hand side into the culvert beside the bridge.  Mr Thomas was about 10-20m metres behind the Land Rover when the accident occurred.  The vehicle was said by Mr Thomas to have been under observation from the time it pulled in front of him until it came to rest.  The importance of his evidence is that he saw no one alight from the vehicle but when it came to rest Mr Mondon was outside and Mr Douglas was trapped in the passenger seat.  Mr Thomas was

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confident that no one got out of the driver’s side.  It should also be said that Mr Thomas did not see anyone alight from the passenger side of the vehicle which should  also  have  been  visible  to  someone  travelling  10-20  metres  behind. Nonetheless Mr Mondon did alight from one side of the vehicle or the other prior to the vehicle coming to rest.

[17] Expert evidence was given by Mr Kahler, a mechanical engineer.  The essence of Mr Kahler’s evidence as I understood it was that if a vehicle started to tip over to the left the driver of the vehicle would be more likely to retain a grip on the steering wheel than release it and go to the left with the fall.  If that happened the driver could not end up partly out of the passenger door as Mr Mondon was.   Mr Kahler also gave evidence based on measured normal human reaction times and the time taken for a vehicle to tip once tipping commenced that it was not possible to open the door of the vehicle and escape from the passenger side. Bearing in mind Mr Mondon’s post accident blood alcohol reading of  .187 at

7:47pm on the day of the accident, it is unlikely his reaction time would have been quicker than average.  Mr Mondon’s version was that he felt the vehicle going over, he opened the door and jumped out.  Even had I believed any of Mr Mondon’s evidence this seems unlikely having regard to the evidence of Mr Kahler.

[18] Accepting, as I do, the evidence of Mr Kahler it follows that Mr Mondon could not have escaped the vehicle from the passenger side.  That leaves Mr Thomas’ evidence that he did not see anyone escape from the driver’s side which was the only other option.  Ultimately this is a matter which cannot be satisfactorily

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explained.  One is left with the conclusion that Mr Thomas must have been mistaken as to the extent to which he was watching the vehicle in front.  If he was continuously watching he must have seen someone get out from one side.  He did not.

[19] There are other minor features which are said to point to Mr Mondon being the driver.  Mr   Poulter heard the gears crunch after it stopped at the gate.  Ms Thomson heard something which might also have been crunching of gears.  The vehicle was old with a crash gear box which a person unaccustomed to driving it might have problems with.  The result would be a crunching of gears.  Mr Douglas  claimed  never  to  crunch  the  gears.    This  provides  some  slight corroboration for Mr Mondon being the driver.

[19] In the result I am satisfied on the balance of probabilities that at the time the vehicle rolled over Mr Mondon was driving.  His driving was clearly negligent. He was in no fit state to be in charge of a motor vehicle.  He was driving so close to the edge of the culvert that an accident was inevitable.

[20] Mr Douglas must, in my view, carry a significant responsibility for his own misfortune.    He  must  have  known  Mr  Mondon  was  drunk.    They  had  been drinking together most of the day.  Mr Douglas was not so drunk he did not appreciate his own unfitness to drive as evidence by his refusing to do so after the gate.  I am not satisfied that he failed to appreciate that Mr Mondon was not in a materially different state.  I consider that the plaintiff has to a significant degree been the author of his own misfortune by not discontinuing the journey after he

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had concluded he himself was unfit to drive.  I assess the degree of contributory

negligence in this case at 35%.

[21] The plaintiff suffered serious injury in the accident.  He was in a coma for a lengthy period.  The injuries are described in detail in the medical reports.  The more serious can be described in lay terms as follows.  The plaintiff suffered a severe chest injury resulting in collapsed lungs and a torn trachea.  The resulting oxygen deprivation and loss of blood pressure caused damage to the optic nerve. In consequence of the damage to the optic nerve the plaintiff has lost 50% vision in the right eye and 90% vision in the left eye.  The plaintiff cannot read other than for very short periods of time.  The plaintiff also suffers constant chest pain in the rib area resulting in loss of sleep and difficulty in breathing.  Heavy activity on any given day requires a period of reduced activity to recover.  His length of activity is limited by the breathing difficulty.  Noela Byrnes, an occupational therapist describes the plaintiff as commercially unemployable.  His prospects of returning to work are bleak.

[22] I  assess  general  damages  for  pain  and  suffering  and  loss  of  amenity  at

$80,000.00.

[23] I award interest on $30,000 at 2% for 2.1 years in the sum of $1,260.00.

[24] The plaintiff’s work history requires some analysis.  His primary occupation was that of a haul out driver during the cane season.  Apart from that he seems to have worked sporadically as a builder’s labourer.  In the year preceding the accident he

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earned about $12,480.00 net from both sources or about $240 a week.  In the

preceding year the plaintiff earned $18,529.80 net from similar sources or about

$356.34 net per week.

[25] The plaintiff had intended not to work the 1999 season as a haul out driver but to work for Mr Mondon as a builder’s labourer.  The intention was to return to haul out driving for the 2000 season if the labouring work with Mr Mondon did not work out.  The 2000 crushing season was a bad one for the Mackay/Sarina region both in terms of tonnage and duration largely as a result of rust affecting the primary strain of cane.  Work was likely to have been harder to get than in previous years.  The work as a labourer for Mr Mondon would not have been long term.  Mondon was sentenced to a term of three months imprisonment in January 2000 and to 3 years imprisonment suspended after 12 months in February

2001.  Work as a haul out operator in the 2000 year may also have been difficult for the plaintiff because in January 2000 he was disqualified from driving for 12 months on a drink drive charge.  Haul out operators require a licence because it is necessary to take the cane bins onto public roads in the movement between farms and sidings.  Nonetheless I am not satisfied the plaintiff would not have obtained some work even if he couldn’t do the things he had done in recent years.

[26] The plaintiff was 44 years old when injured so it seems likely that his work patterns were fairly settled.  Doing the best I can I assess the loss of earnings to date discounted for contingencies at $275.00 per week for 109 weeks in the amount of  $29,975.00.  I award interest on that sum at 5% for the whole period

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in the amount of $3,141.61.  I assess loss of superannuation at the agreed rate of

7% in the sum of $2,098.25 plus interest at $219.91.

[27] There is no reason to believe the plaintiff would not have continued to work to at least age 60.  There is no reason to believe he would not have earned similar amounts to those earned in the past particularly after the cane industry picked up in 2001 and he recovered his licence early in 2002 assuming he would have lost it had the accident not occurred in 1999.  It seems to me to be reasonable to adopt a figure of $300.00 net per week for 15 years which, with a multiplier of 550, totals

$165,000.  Allowing a discount for contingencies of 15% gives $140,250.00.

[28] The loss of superannuation benefits in the future at the agreed rate of 9% totals

$12,622.50.

[29] The plaintiff is now mainly self sufficient  on the evidence. He does his own shopping at the convenience store although in a supermarket his lack of vision means that he must be accompanied.  He has some trouble with cooking and cleaning because of limited vision.  Despite this I acknowledge some need for assistance particularly in the period after the accident which I allow at 7 hours per week for 109 weeks at the agreed figure of $10.00 per hour totalling $7,630 together with interest of $1,526.00 at 2%.  For the future I allow 4 hours per week at the agreed figure of $12.50 for a discounted 22 years totalling $34,800.00 with a multiplier of 696.

[30] Special damages are assessed at $625.00 including interest.

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[31] I  assess  future  medical  needs  at  $5.00  a  week  for  pharmaceutical’s,  in  this instance Zoloft, and $10.00 a week for glasses.  I accept the need for these amounts has been established on the basis set out in paragraphs 75 and 76 of exhibit 19 even though I accept the plaintiff was on anti depressant medication before the accident.  It seems to me to be likely that the medication has been prolonged indefinitely because of the accident.  I do not accept the need for taxi fares.  The plaintiff cannot presently drive because of his disqualification.  He was driving until then despite his disability.  I do not think the cost of the GP visits is allowable.  There is no reason put forward why the plaintiff could not attend a bulk billing GP.   In the result the total for future expenses is $10,440.00 for life discounted to 22 years.

[32] In total I assess damages at $324,588.27

[33] Apportioning liability as to 65% to the defendants and 35% to the plaintiffs I give

judgement for the plaintiff in the sum of $210,982.37.

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