Glen Ornelas v The Nominal Defendant

[2014] NSWDC 83

District Court

New South Wales

Medium Neutral Citation:	Glen Ornelas v The Nominal Defendant [2014] NSWDC 83
Hearing dates:	10, 11, 12 March 2014
Decision date:	21 May 2014
Before:	Judge MJ Finnane QC
Decision:	See paragraphs [37] to [45]
Catchwords:	PERSONAL INJURY - accident - motorcycle - fracture - femur - pain - operation DAMAGES - non-economic loss - economic loss - past and future care - domestic assistance - superannuation
Category:	Principal judgment
Parties:	Glen Ornelas (Plaintiff) The Nominal Defendant (Defendant)
Representation:	Mr K Andrews (Plaintiff) Mr J Turnbull (defendant) NSW Compensation Lawyers (Plaintiff) Holman Webb (Defendant)
File Number(s):	2012/220461

Judgment

1. The plaintiff sues the defendant for the damages arising out of an accident on 12 April 2010 when he was riding a motorcycle and claims that an unidentified vehicle approaching him in the opposite direction caused him to change direction, with the result that he lost control of his motorcycle which slid across the road and this resulted in his injuries.

1. The defendant appears because it is alleged that the motor vehicle that caused the plaintiff to change direction was one that was unidentified. Police were called immediately following the accident and there is no claim that there was a failure of the plaintiff to make due search enquiry to establish the identity of the driver of the motor vehicle.

1. The issues really are whether the accident happened as the plaintiff claimed or whether the accident happened because the plaintiff lost control of his motorcycle and has made a false claim about the accident being caused by an unidentified vehicle.

1. There is also a dispute between the parties about the seriousness of the plaintiff's injuries. The defendant does not dispute that the plaintiff suffered serious physical injury, but does dispute that the plaintiff is still disabled as a result of the injuries suffered by him.

1. Much depends upon the credibility of the plaintiff and supporting witness, to determine the cause of the accident. As far as disability is concerned, the plaintiff is a critical witness and is supported by the evidence of his wife. He relies also on medical evidence.

1. As will become apparent from reading of this judgment, I accept that the plaintiff has given truthful evidence about the circumstances of the accident and I accept that he was disabled by injury caused in this accident and that he suffered serious physical consequences. I can accept that for a period of six months or so after the accident he was seriously disabled, was not able to walk easily and needed others to assist him to do household tasks. I am of the view that he has needed some lesser assistance since then and this need will continue indefinitely.

Facts of the accident

1. On 12 April 2010, the plaintiff was riding his motorcycle on Cowper Street, Port Kembla and his friend Evan Young was riding a motorcycle behind him. It was about 7:30 PM and was dark. According to the plaintiff, and this is borne out by the evidence, the road was curved and rose and fell. The plaintiff said that as he was riding up a short rise and into a curve in the road, at about 50 km/h. He noticed a vehicle with its lights on coming from the other direction. He said that this vehicle veered towards him, cutting the curve and going into his lane. He described what happened as he got to the corner in this fashion:

"I was in the-leaning into the corner to take the left-hand bend and all I saw was two headlights coming at me and more than half the car was over the double lines and I panicked and I took evasive action to get out of the way. I was already on the lean and to take, you know, an even harder lean forced me to take the bike down and slide behind the car and into the barricades." (10/3/14 T9.49 - T10.3)

1. He was then questioned about what happened when he took the harder lean to the left and he said that the bike fell and went into the opposite lane and he was not sure what it hit, whether it was the gutter or the car barriers. He was with the bike on first impact and then felt that he bounced back out of the impact and at that point let go of the bike which went somewhere else, while he slid down the hill a little bit. His next recollection was the road scraping his helmet as he was sliding down the hill and then seeing a bright light in front of him-this was his friend Evan Young. He was lying face down on the road and eventually an ambulance came. He heard conversation but was in shock. He marked on exhibit C where he thought his bike was and where the car was when he first saw it.

1. He was cross examined and it was suggested to him that there was no other vehicle and that he simply lost control as he went around the corner. He denied this. He was prepared to admit that he could have been travelling as fast as 55 km an hour, but maintained that he fell trying to avoid an accident.

1. The plaintiff was severely injured and took no part in speaking to anyone at the scene about the accident.

1. Mr. Young gave evidence that he was following the plaintiff, 50 to 70 m behind him at 50 km/h and noticed the other vehicle approaching the plaintiff and saw the plaintiff overturn. He said that the plaintiff slowly went into the corner, a car came up in the opposite direction across the double white lines, the plaintiff had to lean further into the corner and as he did his front tyre washed out, he went behind that car and as he slid behind that car another car came up and he just missed the front of the other car and hit the kerb. He said that the other motor vehicles just left the scene. He rang 000 and called for an ambulance. He did not mention another vehicle to the operator of 000 and that was because he was anxious to get an ambulance.

1. He marked on exhibit A where he said the plaintiff was in relation to the other two vehicles and marked the course of his travel.

1. Mr. Young was cross examined and it was put to him that there was no other motorcar and that he had told 000 what had happened, not mentioning the presence of any other motorcar. He agreed that he did not mention the presence of two motorcars when speaking to 000, but claimed that his intention was to get an ambulance there quickly. He said that he did tell a police officer who came to the scene about the presence of another vehicle. The police officer, Constable Payne, confirmed that the witness had told him about the presence of another motor vehicle. It was also put to him that this was just a case of the plaintiff speeding, something that he denied.

1. I examined the evidence of both of these witnesses very carefully and I measured what they said against the evidence of Constable Payne. I am of the opinion that both of them gave evidence that I should accept and I am of the opinion that the reason the plaintiff swerved and lost control of his motorbike was because an oncoming car appeared to be on a collision course with his bike. At the time he was going at a speed of between 50 and 55 km/h. His speed was reasonable in the circumstances and he was riding in an appropriate manner and took evasive action, but unfortunately, this resulted in the bike overturning and to his becoming seriously injured. Even if he had been going at a considerably greater speed, that would not have meant, in my opinion, that the speed had anything to do with the accident. The experts agree that he could ride safely at speed greater than 50 km/h in the area in which he was travelling and in my opinion there is nothing in the circumstances of the accident that show that he was in any way by his manner of riding contributing to the accident.

1. In my opinion, it was understandable that Mr. Young, when ringing 000, would focus on his injured friend, rather than reporting the exact detail of an accident. Mr. Young gave evidence in a very straightforward manner and I thought he was telling the truth, as he saw it. I do have some doubt as to whether there was a second vehicle, but I have no doubt that he believed there were two vehicles following one another and that the plaintiff slid between the two of them.

1. Constable Payne did not make any exact measurements or take any photographs. He made a rough sketch plan, that has some difficulty about it since no attempt was made to do anything more than roughly indicate a path of the motorbike. In my view, this was a matter of some significance because two engineers who came to give evidence as to what happened in the accident were guided to some extent by the by the constable's rough sketch and rough description.

EXPERT EVIDENCE

1. Mr. Glenn Urquhart and Mr. David Johnston, professional engineers, both gave evidence. Each of them did extensive reports and gave their evidence together in the witness box in the fashion now known popularly as "hot tubbing." Mr Johnston inspected the site on 21 February 2011 and Mr Urquhart inspected the site on 10 January 2013. Their inspections were thorough but suffered from the problem that all the debris caused by the accident had been removed and was not possible to determine what particular marks were made on any particular physical objects by the motorbike in this accident. Each of them took photos and made measurements, but those measurements were dependent to some extent on what the police constable had said in his police report and on versions given by the plaintiff and Mr Young. All of these versions suffered from a lack of exactness and each of the experts had to make assumptions about such matters as the distance of travel in the motor vehicle after the collision and had to rely on their own opinions based on their knowledge of science to draw conclusions as to the speed at which the bike was going at the time of impact with the kerb and the speed at which the bike was going before it fell over. In evidence they agreed that the range of speed for the bike before it fell over was 55 to 80 km/h and the speed at impact between 40 and 60 km/h.

1. I am unable to be certain that the opinions either of them expresses is correct. I cannot be certain precisely what speed the plaintiff was travelling before his motorbike went over, but I am prepared to accept his estimate that he was doing 55 km/h.

1. Neither of the experts can prove whether another vehicle was involved in the accident, but Mr Young was able to substantiate in large measure, the version of the plaintiff. I am not prepared to come to a different conclusion about the acceptability of the plaintiff's evidence because of the evidence of the experts, since in my view that evidence is based on such uncertain facts that it is not sound.

CONCLUSIONS ON THE EVIDENCE

1. In my opinion the plaintiff has established on a balance of probabilities that he was travelling safely and was forced into a manoeuvre to save his life by an oncoming motor vehicle that was crossing towards him on the roadway. In my opinion the steps that he took to avoid the collision were reasonable and there was no negligence on his part. It follows that there will be a verdict from the plaintiff and there will be no finding of contributory negligence.

DAMAGES

1. The plaintiff was taken by ambulance on 12 April 2010 to the Wollongong district Hospital where he was admitted and on the same day underwent an operation for an open reduction of a fracture to his left femur. This required fixation using nails and screws. Two days later considerable swelling was noticed at the site of the wound, but ultimately the wound was closed. He was discharged on 21 April 2010 on crutches into the care of his brother. The nails and screws were removed in September 2011.

1. I have examined the hospital notes and there does not appear to be any reference to back, shoulder or neck pain or any hernia problems.

1. On his discharge he was ingesting daily Endone and Panadeine Forte and he has continued to take these drugs up to the present. He claimed that when he attempted to cease using these drugs he became aware of problems with his neck and shoulder. Soon after leaving hospital he went to a local general practitioner but on 24 May 2010 he changed his treating doctor and put himself under the care of Dr Milena Vukoje. Dr Vukoje provided a very detailed report and was not required for cross-examination. The plaintiff has seen her on numerous occasions right up to 26 August 2013 and it is clear that she has examined him herself and has sent him for various tests.

1. Ultimately I have concluded, after giving the matter very serious consideration, that I should prefer the evidence contained in the report of Dr Vukoje to evidence contained in reports of specialist doctors retained by the defendant. Dr Vukoje's opinions are also supported by the evidence of medical practitioners retained by the plaintiff.

1. I gave serious consideration to the question whether the plaintiff suffered injuries other than those associated with his broken left femur and the associated question whether he continued to suffer disabilities arising from the accident.

1. His evidence is that he returned to work five months after he was discharged from hospital but remained with this employment for a period of only five weeks. Before the accident, he worked for a contractor to the railway system, repairing tracks. Although he had a supervisory position at the time he had the accident, I am satisfied on the evidence that it was a requirement of his employment that he become physically involved in some quite heavy work and it was likely that this would have been a requirement for the future.

1. During the time he returned to work, he worked only in the office and did not work any overtime. His employer had obviously regarded him as a very good employee because he paid him wages while he was unable to work for the five months after he left hospital. He left this employment to become a draughtsman, working with a friend of his. His rate of pay is significantly less than it was when he worked for the rail contractor. He said in evidence that he left his employment because he could not do the heavy work that was demanded and it was fortunate that a friend offered him alternative employment as a draughtsman. He continues to work as a draughtsman. This work permits him to vary his position from standing to sitting, he can walk around and he can take breaks. I accept his evidence that he left his employment with the rail contractor only because of the injuries he suffered and because he could not continue doing the work although it was something that he enjoyed.

1. He gave evidence that once the aching associated with his broken leg ceased, he became aware of pain in his neck and lower back and pain in his scrotum. When he returned to walking, he found that if he walked too far or lifted anything too heavy, he would start to limp and the pain would increase. At the same time he noticed that his neck was stiff and sore. He also noticed stomach pains and pains developing in his shoulder on the left-hand side and his left knee.

1. Before the accident he had been involved in jogging, running, cycling and swimming and had from time to time ridden his motorcycle. Since the accident he has not been able to engage in any of these activities because of the problems with his left leg and the problems with his neck and shoulder. Since he has returned to work, he has been able to drive a manual motor vehicle from his home to his place of employment. He has an agreement with his former employer that he will pay back to him the money that was paid voluntarily to him by the employer during the five months that he was unable to work. At the time of the accident he was still taking pain medication, Panadeine Forte, 1 to 2 tablets a day and Panadol, up to 6 tablets a day.

1. His claim is that for a few months after he was discharged from hospital he was completely dependent on the support of his parents, with whom he had gone back to live, for getting in and out of bed having a shower and going to the toilet. They also helped him to dress and it was only after five months that he was able to get around by himself, initially relying on one crutch. He married on 2 February 2013 and lives with his wife in a house on a sloping block. He does none of the work in and around the house. He pays an uncle to mow the lawns and occasionally his parents come over and help with the garden. His wife does all the work in the house, the cooking and all the cleaning. His evidence was that he could do none of these things because of the pain he suffers in his neck shoulders and left leg. His wife gave evidence to support what he said and I accept that she gave truthful and honest evidence.

1. The evidence given by him and his wife that he was unable to do any work at all in and around his home caused me to examine carefully his claims, the evidence of his wife and the medical evidence given on his behalf. He is 31 years old and at first blush it seemed to me hard to accept that he could do nothing at all in and around his house and that the pain he felt was so extreme that he needed to take the pain medication to which I have referred on a daily basis.

1. I am satisfied that he does take the pain medication as he says and I am impressed by the report of his general practitioner. The report is very detailed containing a lot of information about his complaints and his symptoms as well as detailed information about examinations made on him by her. The defendant qualified Dr Stephen and Dr Lim, both eminently qualified specialist practitioners. Both of them took the view that the plaintiff was not genuine and suffered no complaints in his back, neck or shoulder. Each of them concluded that his continuing disability was small and related only to the damage to his left leg.

1. The plaintiff qualified Dr Dixon, Dr Meares, Dr Matalani and Dr Jones. Each of these eminently qualified specialist practitioners supported substantially the opinions of the plaintiff's general practitioner. Each of them accepted him as genuine and the injuries and disabilities in which he complained as being genuine. Clearly they carried out detailed examinations of the plaintiff and I found the reports impressive.

1. In the result, I prefer the medical opinions expressed on behalf of the plaintiff to those expressed by the doctors called on behalf of the defendant, particularly because the treating general practitioner who has seen him so many times has assessed his complaints and concluded that the complaints are consistent with the disabilities of which he complains.

CONCLUSIONS ON DAMAGES

1. Having carefully considered all of this evidence, I have come to the conclusion that I should accept that the plaintiff suffers from the problems of which he complains, that they are related to the accident and causally connected to it and that he is entitled to damages in relation to all of the matters about which he complains.

1. He is entitled to damages for pain and suffering, known now as damages for non-economic loss, for the fracture of his leg, the pain and suffering that resulted from it, the operative treatment that flowed thereafter and the pain and suffering resulting from that, his being disabled for five months and being totally dependent on others for support, the injury to his neck shoulder and back, the hernia from which he suffers, the scarring to his left leg. I am satisfied that his injuries have resulted in continuing and permanent pain and suffering, such that he needs regular attendance on a general practitioner, daily medication and that he is unable to do any work in and around his home and that will continue indefinitely.

1. The plaintiff's counsel claimed that I should award him $285,000 for non-economic loss. The defendant's counsel claimed that I should award him $100,000. It is always difficult to assess an appropriate sum for non-economic loss, but I have decided that I should award him the sum of $225,000.

1. His out-of-pocket expenses have been agreed in the sum of $13,828.45. Dr Jones has estimated a need for future out-of-pocket expenses arising from the need to see a general practitioner every two months and to get medication every 10 days and have hydrotherapy twice a week for three months. I am not prepared to allow any amount for hydrotherapy, since the plaintiff ceased to use hydrotherapy and I doubt that he would ever again use it. I am prepared to allow a reasonable amount for the other two items, but in light of the recent forecast by the Australian Government of changes to the Medicare system and increasing costs of medication, I must leave it to the parties to come up with an appropriate amount.

1. Economic loss is the next item to be considered by me. I accept that the plaintiff left his employment and took on a lower paying job because he could not continue in the employment as he is physically not able to do so. This has resulted in a permanent economic loss being the difference between what he could have expected to earn as an employee of the rail contractor and what he has earned as a draughtsman. This loss has been calculated by the plaintiff's counsel based on tax returns that have been tendered and I accept the calculations made by him. This will result in an award of past economic loss of $92,344.71.

1. Superannuation on past economic loss has been calculated by the plaintiff's counsel in the sum of $10,157.92 and I award that amount.

1. Counsel for the plaintiff has calculated future economic loss on the basis of $175 per week with a 15% discount for vicissitudes. The Federal Government has set the retirement age, during the lifetime of Mr. Ornelas to at least 70 years of age. However, because of the type of work the plaintiff envisaged to be involved with, that is the work on the railway, it is very hard to be certain that the plaintiff would have worked up until the age of 70. Therefore, I have allowed a vicissitudes discount of 25%, that results in an award of $119, 424.37.

1. Superannuation on future economic loss has been calculated at $14,330. 92 and I award that amount. A claim is made for past domestic assistance, i.e., the amount paid to his uncle for lawnmowing. That has been calculated in the amount of $2700. The calculation appears to be reasonable and I award that amount.

1. The claim is made for lawn mowing for the future and a rate of $15 per week. That appears to be a very modest claim and I allow it, resulting in an award of $14,890.50.

1. Finally an amount is sought for two hours per week commercial assistance. This would involve paying someone to clean house. The amount sought seems to me to be excessive and I would allow $40 per week. Counsel should assess what that sum would be. I come to this conclusion because there is no evidence that it would require a payment of $40 per hour for such work.

1. When counsel have worked out the amounts concerned I will enter judgment. I will then deal with submissions on costs.

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Decision last updated: 02 July 2014