Gecse v Saint-Rang

[2000] QCA 468

SUPREME COURT OF QUEENSLAND

CITATION:

Gecse v Saint-Rang & Anor  [2000] QCA 468

PARTIES:

TIBOR GECSE
(plaintiff/respondent)
v
BILLY SAINT-RANG
(first defendant/appellant)
AUSTRALIAN ASSOCIATED MOTOR
INSURERS LIMITED
ACN 004 791 744
(second defendant/appellant)

FILE NO/S:

Appeal No 3113 of 2000
DC No 227 of 1997

DIVISION:

Court of Appeal

PROCEEDING:

Personal injury – liability and quantum

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

21 November 2000

DELIVERED AT:

Brisbane

HEARING DATE:

30 October 2000

JUDGES:

Pincus and Davies JJA, Byrne J
Judgment of the Court

ORDER:

Appeal dismissed with costs to be assessed

CATCHWORDS:

TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – FAILURE TO LOOK-OUT – GENERALLY – respondent cyclist hit by appellant's car at intersection – respondent on wrong side of road but stationary – bicycle lane blocked by roadworks – appellant failed to see respondent – whether apportionment of 85% of liability to appellant too high

DAMAGES – MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT – MEASURE OF DAMAGES – PERSONAL INJURIES – LOSS OF EARNINGS AND EARNING CAPACITY – PARTICULAR CIRCUMSTANCES – respondent to turn 65 about two years after trial – evidence that would have continued to work until at least 65 – damages for future economic loss did not take account of chance that respondent might, but for the accident, have continued working past age 65 – whether should have taken account of chance that respondent might not have worked to age 65

COUNSEL:

J S Douglas QC for the appellants
A J Moon for the respondent

SOLICITORS:

Purcell Taylor (Townsville) for the appellants
Connolly Suthers (Townsville) for the respondent

1. THE COURT:  This appeal concerns a collision between a bicycle and a motor car in the course of which the respondent rider suffered injury.  The trial judge held that both the respondent rider and the appellant driver were at fault and apportioned liability 85% against the appellant driver.  His Honour awarded damages of just over $100,000.

1. The appellants contend that the judge's apportionment of liability was too generous to the respondent and that his Honour was wrong in holding that the principal cause of the collision was the driver's negligence.  It is also contended that the judge made an error in assessing damages.

1. The evidence on liability that the trial judge had before him was from two witnesses only:  the respondent and a police officer, Mr Richardson.  For reasons which were unexplained, the appellant driver was not called.  The collision happened in the vicinity of the intersection of Kings Road and Woolcock Street, Hyde Park, Townsville.  Shortly before the collision happened the respondent had been riding his bicycle north on the wrong side of Kings Road in a marked bicycle lane.  At the time of the collision he was in the process of stopping and getting off his bicycle, with a view to proceeding further on foot, wheeling his bicycle.  When the collision happened the bicycle was practically stationary.  The driver came from the opposite direction to that in which the bicycle had been travelling and she was turning, or had turned, to her left out of Woolcock Street into Kings Road.

1. It was common ground that, as we have mentioned, just before the collision the bicycle was being ridden in the wrong direction in the bicycle lane and one issue in the case was why the respondent so rode the bicycle and whether his doing so was negligent.  The judge's understanding of the matter is set out in the following paragraphs:

"He had been riding in the bicycle lane to the left of Kings Road.  As he approached the intersection, the bicycle lane in front of him was obstructed as was the footpath.  Various equipment such as cranes, concrete trucks and the like blocked the bicycle lane to his left.  The Plaintiff planned to walk his bicycle across Woolcock Street, as had been his practice for a couple of weeks prior to the accident.  In accordance with that practice he crossed over onto the other side of the Kings Road where for a short period he was riding north in the bicycle lane on the eastern side of the road before dismounting.

That bicycle lane was also blocked.  It was blocked for purposes associated with roadworks.  There was excavation of the bicycle lane and of the footpath and the lane was barricaded with plastic mesh and hurricane barricades which are shown in photographs, being exhibits 21 and 22". (324, 325)

1. It will be noted that the judge said that the bicycle lane and footpath in front of the respondent as he rode on the left-hand side of Kings Road were obstructed.  That accorded with evidence given by the respondent (12, 38, 51) which, it seems plain, his Honour was entitled to accept.  The judge also found, it will be noted, that the right-hand side bicycle lane was blocked and his Honour mentioned plastic mesh as well as "hurricane barricades".  The presence of the mesh was sworn to by Mr Richardson (67, 68) and its relevance is to an argument, which was put to us, that the respondent could have taken his bicycle inside the barricade, on the footpath.  What the respondent was doing, instead, was moving outside the barricade, on the extreme edge of the roadway.

1. The case against the respondent was, of course, that he was in an unsafe place and that it was unreasonable for him to have been there.  A number of possibilities were explored in evidence.  It was put to him that he could simply have continued to ride along the left-hand side of Kings Road, across the intersection.  The respondent gave an explanation for his failure to do this, relating to a recent incident in which he was frightened by a vehicle which "just brushed my elbow and scared me a lot", as he was attempting to ride across the intersection.  It was that incident which convinced him that it was safer to get off and walk across, which was what he was about to do at the time of the subject collision.

1. Again, counsel for the appellants argued that instead of travelling where he did, the respondent should have made his way through a car park which, it was said, would have got him to the intersection away from danger.  Although this was put to the respondent in cross-examination (53, 54) the practicability of going through the car park was not fully explored and on the judge's findings it did not appear to be a reasonable alternative (326).  There is criticism, in the appellants' outline, of the judge's finding which described the access from Kings Road to the car park as being "from a side street".  The evidence (72, 73) dealing with the issue is in our view insufficiently clear in meaning to negate the judge's finding.

1. His Honour took the view that the respondent was guilty of contributory negligence in electing not to proceed across "in the traffic lane", meaning of course while riding the bicycle.  While we do not question the correctness of that finding, it is permissible to observe that such a view was not inevitable.  The judge was prepared to accept that the respondent had recently had a near-collision while riding across and, considering the obvious vulnerability of bicycle riders in heavy traffic, criticism of the respondent in choosing what appeared to him to be the safer course of wheeling his bicycle across the intersection is not, at first sight, persuasive.  The other area of attack on the respondent's conduct, advanced strongly on appeal by counsel for the appellants, is that if he chose to proceed on foot the respondent should not have unnecessarily exposed himself to danger by trying to move along on the extreme right-hand side of the roadway. 

1. While in the bicycle lane the respondent was safe enough;  it is when he had to move past the barricade that potential danger arose.  It is arguable that despite the awkwardness of doing so, due to the state of the footpath and the obstruction caused by the hurricane barricades and plastic mesh, the respondent should have gone behind the hurricane barricades and moved along the footpath.  The judge pointed out in his reasons that the obstructions in the path of the respondent were more extensive on the left-hand side of the road than on the right-hand side;  but his Honour was not prepared to find that the respondent's failure to attempt to get past the obstructions on the right-hand footpath, rather than moving along the roadway next to the barricades, constituted negligence.  It does not appear to us that this Court, having regard to the principles which govern interference with such findings, can properly disagree with the learned primary judge on that aspect.  To put the matter more broadly, the judge was prepared to make a finding against the respondent, as to his chosen means of getting across the intersection, in only one respect:  in that he failed to take the course of riding across among the traffic.  No consideration of sufficient strength has been put before us to justify this Court making a finding of negligence in other respects.

1. Looking at the matter from the driver's point of view, it must or should have been evident that the barricades and other obstructions gave rise to a risk that people might move onto the roadway to the left of the line of barricades to get around the corner, rather than go behind them.  There was no evidence that there was any traffic beside the driver's vehicle as she came around the bend, preventing or restricting that slight move to the right which would have avoided the collision.  The respondent said that he saw the vehicle approach and "froze".  He thought it was coming fast, but that seems unlikely.  The collision appears to have been one of only moderate severity, as one would expect to occur between a car travelling at modest speed and a bicycle which was practically stationary.

1. The judge found that the driver –

"... was noted to be looking away to her right by the [respondent], that being consistent with her seeking to ascertain if traffic was proceeding through the intersection on Kings Road in the same direction she wished to travel ...".

There does not appear to be any reason why the judge could not make that finding.  The driver was entitled, although the intersection is controlled by traffic lights, to turn left, but there was a traffic sign against her commanding that she do so with care.  On the judge's finding her care was confined to ascertaining that there was not traffic coming from her right rear which might interfere with her turn, whereas she had an obligation to take care by also looking where she was going. 

1. The judge found that absence of proper lookout on the part of the driver was the major cause of the accident.  That view cannot, accepting the primary findings, be challenged, unless it be on the basis that the driver's obligations of taking care were fulfilled by looking to see if there was traffic coming from her right rear.  In our opinion the driver's obligations went beyond that and her failure to fulfill them caused her to collide with an (almost) stationary object at the edge of the roadway, whose presence should have been evident to her as she approached.  It need hardly be added that the appellants' challenge to the primary judge's conclusions is not assisted by the circumstance that the driver gave no evidence.

1. In our opinion the case is not one in which any good ground has been shown for interfering with the judge's conclusions from the evidence relating to liability or the apportionment his Honour fixed.

1. Quantum

The only argument advanced, as to the judge's assessment of damages, was that on the basis of the evidence of a Dr Macfarlane the judge should have discounted the respondent's claim for damages for future economic loss.  The respondent was born in 1937 and was when injured on 6 December 1996 working as a silk-screen printer. Because of his injuries, he found difficulty in coping with his work and was forced to give up his employment in May 1999.

1. Dr Macfarlane gave evidence that there was an aggravation of pre-existing osteo‑arthritis in the right knee, as well as a torn lateral meniscus.  He thought there was soft tissue damage to the right shoulder, probably to the capsule.  The respondent also complained of back pain relating to his work and the judge accepted evidence that such pain was causally connected with the accident.  The judge found that there were permanent neck pain of "relatively low-level but constant" and some problems with headaches.

1. The respondent will celebrate his 65^th birthday on 17 April 2002, a little over two years past the date of trial, at which date he had been out of employment for about nine months.  The judge assessed future economic loss on the basis that the respondent's employment would have continued until he was at least 65.  There was evidence to support that finding (Exhibit 27, 157, 164) and the only criticism made is that no discount was allowed, as to the claim for future economic loss, for the chance that he might not have worked to age 65.  The contention appears to us to be easily answered;  a discount was built in because the judge has given the respondent no credit for the chance that he might have, but for the accident, worked past the age of 65 (336).

1. In our opinion the appeal should be dismissed, with costs to be assessed.