Holland v Kachel and QBE Insurance (Aust) Ltd

[2010] QDC 287

DISTRICT COURT OF QUEENSLAND

CITATION:

Holland v Kachel & QBE Insurance (Aust) Ltd [2010] QDC 287

PARTIES:

DAVID BRIAN HOLLAND
(Plaintiff)

V

LAWRENCE DESMOND KACHEL
(First defendant)

AND

QBE INSURANCE (AUST) LTD
(Second defendant)

FILE NO/S:

BD2158/08

DIVISION:

Civil

PROCEEDING:

Trial

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

16 April 2010

DELIVERED AT:

Brisbane

HEARING DATE:

2 and 3 September 2009

JUDGE:

Dearden DCJ

ORDER:

Judgment for the plaintiff David Brian Holland against the first defendant Lawrence Desmond Kachel and the second defendant QBE Insurance (Australia) Ltd in the amount of $11,449.47

CATCHWORDS:

DAMAGES – NEGLIGENCE - PERSONAL INJURY  – motor vehicle accident – application of s.146 of the Transport Operations (Road Use Management – Road Rules) Regulation  - whether the collision occurred on a ‘road’ or a ‘road related area’  – application of s.74 of the Transport Operations (Road Use Management – Road Rules) Regulation – contributory negligence by plaintiff.  

CASES:

Sibley v Kais (1967) 118 CLR 424

Carter v Gilmore [1975] 49 ALJR 360

Fox v Wood (1981) 148 CLR 438

LEGISLATION:

Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) s.11, s.13, s.74, s.146, ss.129-132,  

Transport Operations (Road Use Management) Act 1995 (Qld) Sch 4.

Evidence Act 1977 (Qld) s.79.

COUNSEL:

Mr J. Harper for the plaintiff
Mr T. Matthews for the defendants

SOLICITORS:

Shine Lawyers for the plaintiff
Quinlan, Miller and Treston, Solicitors for the  first and second defendants

Introduction

1. The plaintiff David Brian Holland seeks damages for personal injuries arising from a motor vehicle collision which occurred on 19 March 2007 on the Gatton-Clifton Road, near Ma Ma Creek Village, Queensland.  The plaintiff claims that he sustained personal injuries as a result of the motor vehicle collision.

Liability

Circumstances of the collision

1. The plaintiff commenced employment with Amalgamated Plastic Engineering in Toowoomba on 11 January 2007.[1]  At the time the plaintiff was living at 1152 Back Ma Ma Road, Mt Whitestone,[2] where he had lived for three or four months prior to the collision.[3]

   [1]Exhibit 14.

   [2]T 1-32.

   [3]T 1-45.

1. The plaintiff’s journey to Toowoomba from his then residence at Mt Whitestone required him, each weekday morning, to travel from his home (which was three to five kilometres past Ma Ma Creek Village), north along Gatton-Clifton Road and eventually up to Toowoomba.[4]

   [4]T 1-17.

1. The plaintiff normally dropped his rubbish off at a rubbish collection point which contained one or two industrial bins behind a truck rest stop approximately one kilometre to the south of the village of Ma Ma Creek.[5]

   [5]T 1-17.

1. The collision occurred at the Ma Ma Creek Heavy Vehicle Rest Area No. 138.[6]  Photographs of the area are contained in Exhibits 25-29, 37 and 39, and a diagram is contained in Exhibit 30.  The scene of the collision is a truck rest stop which comprises an area of bitumen adjoining the two-lane highway (one lane in each direction) and separated from it by a solid white edge line.  To both the north and south of this area is a blue advisory roadside sign containing the letter “P”, an image of a semi‑trailer and an arrow pointing to the area on the western side of the highway.[7]  Adjacent to the truck rest stop area is a line of brigalow trees.[8] Behind those brigalow trees runs a dirt track in a crescent shape, allowing access to driveways of nearby rural properties, as well as to the green industrial bins provided by the Gatton Shire Council.[9]

   [6]Exhibit 38, Exhibit 25-29, 37 and 39 (Photographs), Exhibit 30 (diagram).   

   [7]See Exhibit 28.

   [8]T 2-19.

   [9]T 2-24.

1. The plaintiff recalls very little about the collision.  The plaintiff recalls travelling along the Gatton-Clifton Road from his residence at Mt Whitestone in his maroon Mitsubishi Magna stationwagon registration 618JYM.[10] The plaintiff recalls that he left the bitumen road at the south end of the truck rest stop area and proceeded along the dirt track to the industrial bins. There he stopped, dropped his rubbish off in the bin, hopped back in his car, put his seatbelt on and proceeded back out on to the Gatton-Clifton Road at the north end of the truck rest stop area.[11]  The plaintiff left home at about 6.45 am and the collision occurred (he recalls) roughly 6.45 am to 6.50 am.[12]

   [10]Exhibit 34 para 10 and see T 1-19.

   [11]T 1-18.

   [12]Exhibit 34 (statement of Kamilla Ann Kowaltzke and see T 1-37).

1. In the applicant’s conversation with police officer Kowaltzke on 26 March 2007 (which he accepts was accurate),[13] the plaintiff stated that (having dropped off the rubbish) he then “proceeded back out on to the road and bang, that’s all I knew I didn’t see him the first thing I knew is when I hit him I didn’t have time to brake or serve.”[14]  The plaintiff recalls seeing the vehicle driven by the first defendant Lawrence Kachel (the first defendant) “a split second” before the collision with “no time to do anything.  All I remember is just hitting the vehicle it would have been about a quarter of a second before we hit.”  When asked whether his vehicle had stopped at the end of the gravel section, the plaintiff said, “I don’t remember but I would imagine that I was looking behind me to the right.”  The plaintiff could not recall whether any cars were coming when he looked to the right, and when asked if he looked to the left the plaintiff stated, “I don’t remember.  I can’t say if I looked to the right but I am assuming I would have, I can’t remember if I looked to the left.”  The plaintiff described his speed as “very slow”, claimed not to have been distracted by anything prior to the incident, and stated that the “drop where the bins are” and “the long grass on the verge, it was about three foot high” were the reasons that he did not see the first defendant’s vehicle.[15]

   [13]T 1-36.

   [14]Exhibit 34 para 17.

   [15]Exhibit 34, paras 18-43.

1. Although the plaintiff recalls the collision as being “head on”, he accepts (and the photographs reveal[16]) that the impact to each vehicle (the first defendant was driving a Ford Trader tray back truck) was to the front right‑hand corner of each vehicle. 

   [16]Exhibit 25.

1. The first defendant was employed by the Gatton Shire Council at the relevant time to collect refuse from sites and refuse bins around the Gatton Shire. He recalls emptying a couple of bins at the shop at the village of Ma Ma Creek,[17] before proceeding to the truck stop about a kilometre south from Ma Ma Creek village.  The first defendant pulled over to the right with a broken lane marking on his side and was about eight to 10 metres from the small rubbish bin situated at the truck rest stop centre (immediately adjacent to the bitumen of the rest stop), when the plaintiff’s vehicle came from the right of the first defendant’s vehicle out of the “green panny grass”, which was about four foot height.  The first defendant was doing 20 to 30 kilometres per hour at the time and although he slowed down, the plaintiff’s vehicle just kept coming, even though the first defendant braked pretty heavily.[18] The first defendant gave evidence that he “never had a chance to do anything” to avoid the collision.[19]

   [17]T 2-12.

   [18]T 2-13.

   [19]T 2-37.

1. After the two vehicles collided, the plaintiff and the first defendant both got out of their vehicles.  The first defendant had to climb over his passenger seat to get out of his truck.  After the plaintiff got out of his car, there was a brief conversation.  The first defendant asked the plaintiff whether he had the sun in his eyes but could not recall the plaintiff’s answer.  The plaintiff kneeled down and said, “I’m hurting.”[20]

   [20]T 2-17—2-18.

1. The first defendant gave evidence that it was always his practice, having emptied the truck stop refuse bin twice a week for a number of years, to cross over the centre line where it was broken from his side (at the northern end of the truck stop), to then drive up to the bin, empty it, and then continue along the truck rest stop, turn right (at the southern end of the truck stop) into the dirt track, come back past the industrial bins and exit back onto the truck rest stop area (i.e. the same route as the plaintiff was driving immediately prior to and at the point of collision) before turning left, back out on to the Gatton-Clifton Road heading north.[21]

   [21]T 2-22—2-23.

1. The first defendant acknowledged in cross-examination that he could have accessed the small rubbish bin alternatively by going to the southern end of the truck rest stop area and executing a U‑turn, or he could have turned into the dirt track behind the brigalow trees and accessed the bin from there.[22]

   [22]T 2-26—2-27.

1. Although the first defendant had undertaken the task of emptying the small rubbish bin at the truck rest stop centre twice a week for 10 to a dozen years, he saw very few cars using the dirt track.[23]

   [23]T 2-14; T 2-28.

Submissions on the law

1. The plaintiff argues that the first defendant was not performing a lawful manoeuvre at the time of the collision and that he was in breach of Transport Operations (Road Use Management – Road Rules) Regulation s.146.  In essence, the plaintiff argues that the truck rest stop area (the bituminised area on the western side of the Gatton-Clifton Road) is a “road” and consequently the first defendant was (at the time of the collision) in breach of his obligation to stay on the left on a “road.”[24]

   [24]Transport Operations (Road Use Management – Road Rules) Regulation ss.129-132.

1. “Road” is defined in Schedule 4 of the Transport Operations (Road Use Management) Act  1995 (inclusively) as:

(a) includes a busway under the Transport Infrastructure

Act 1994; and

(b) includes an area that is—

(i) open to or used by the public and is developed for, or has as 1 of its uses, the driving or riding of motor vehicles, whether on payment of a fee or otherwise; or

(ii) dedicated to public use as a road; but

(c) does not include an area declared under a regulation not to be a road.

1. Transport Operations (Road Use Management – Road Rules) Regulation s.11 provides:

(1) This regulation applies to vehicles and road users on roads and road-related areas.

(2) A reference in this regulation (except in this division) to a road includes a reference to a road-related area, unless otherwise expressly stated in this regulation.

1. Transport Operations (Road Use Management – Road Rules) Regulation s.13 provides:

(1) A road-related area is any of the following—

(a) an area that divides a road;

(b) a footpath or nature strip adjacent to a road;

(c) an area that is not a road and that is open to the public and designated
for use by cyclists or animals;

(d) an area that is not a road and that is open to, or used by,

the public for parking vehicles.

1. The plaintiff argues that the truck rest stop area is not a “road related area”[25] nor the “shoulder of a road”.[26]  The plaintiff submits then as follows:

(a)The truck rest stop area is clearly designed to be used by motor vehicles in travelling “along the road”.  In that respect the plaintiff relies on evidence indicating that the dirt track leading up to the rubbish bins is regularly accessed by members of the public, with the plaintiff regularly driving on that area, as did the first defendant.  The plaintiff also notes that the bitumen area containing the truck rest stop is bounded by a solid white line in some parts but with a broken white line at each end indicating entry and exit points, and further that there were no marked parking bays or any other indication that the area was designed only as a parking area.

(b)The area in question is not outside an edge line on the road, but is rather a dedicated lane, which is neither a “service road”, nor a “slip lane” (there being no dividing strip, painted island or traffic island), nor is it a “special purpose lane” given there is no marking to indicate that it is for any special purpose.  The plaintiff therefore submits that the area where the collision occurred is not a “road related area” but is part of the “road”.

[25]Transport Operations (Road Use Management-Road Rules) Regulation s.13(1).

[26]        Transport Operations (Road Use Management- Road Rules)Regulation s.13(3).

1. The first and second defendants argue, on the other hand, that the truck rest stop area is a “road related area” and is therefore subject to the provisions of Transport Operations (Road Use Management – Road Rules) Regulation s.74 which relevantly provides:

“(1)A driver entering a road from a road-related area, or adjacent land, without traffic lights or a stop sign, stop line, give way sign or give way line must give way to all of the following - -

(d)        For a driver entering the road from a road-related area - -

(ii)Another vehicle ahead of the driver’s vehicle or approaching from the left or right.”

1. In short, the defendants argue that the plaintiff had an obligation to give way to all traffic on the truck rest stop area, and simply failed to do so.

1. The defendants argue further that the plaintiff’s conviction in the Gatton Magistrates Court on 23 January 2008 for driving without due care and attention,

establishes beyond reasonable doubt that the plaintiff failed to keep a proper and reasonable look-out, and consequently establishes a prima facie case of negligence on the part of the plaintiff.[27]

[27]Evidence Act s.79.

Conclusions on liability

1. I find as follows:-

(a)The truck stop area where the collision occurred was, I conclude, a “road related area” pursuant to Transport Operations (Road Use Management – Road Rules) Regulation  s.13(1)(d), and was not a “road.”  The area was clearly delineated by a single white line with entry and exit points at either end, was clearly designed for, designated as, and signed (at both the north and south ends) as a “heavy vehicle rest stop area”.[28]

[28]Exhibit 38.

(b)              The plaintiff was the driver of a vehicle entering a “road related area” from either “adjacent land” or another “road related area” (it is not necessary for me to make a finding as to the nature of the dirt track), and consequently there was an obligation on the plaintiff to give way to all vehicles on the “road related area”.  This the plaintiff clearly failed to do. 

(c)              However, the first defendant had serviced this particular truck stop area twice a week for some 10 to 12 years[29].  The first defendant had routinely followed the same route that he was intending to follow on the morning of the collision.  That route involved the defendant turning right into the truck stop area from the northern end, proceeding south on the truck stop area to the small rubbish bin, emptying it, then travelling to the southern end of the truck stop area where he would turn right and follow the dirt track behind the line of brigalow trees past the industrial bins, exiting at the northern end of the truck stop area, turning left and driving north.  This part of the route was, of course, the same route followed by the plaintiff on the morning of the collision.

(d)              Consequently, I consider the first defendant would have (and should have) been well aware of the possibility of a vehicle emerging from the dirt track at the north end of the truck stop rest area. Even though the first defendant had right of way, he should have proceeded with caution, particularly in the context of the four foot high grass which obscured vision for a motor vehicle such as that driven by the plaintiff’s (although not necessarily for the first defendant’s truck).[30]

(e)              Accordingly, I find that the first defendant was negligent. However, I consider that the majority of the responsibility for the collision should rest with the plaintiff, whose obligation was to give way to all traffic on the truck rest stop area.  The plaintiff was also (from his previous regular usage of the dirt track) familiar with the dangers of the exit back on to the truck rest stop area and in particular the long grass that obscured vision of traffic which may have been approaching the exit point from the left. Consequently, I consider that responsibility for the collision should be apportioned 75/25 against the plaintiff.[31]

[29]T-2-22 – 2-23.

[30]See Sibley v Kais (1967) 118 CLR 424.

[31]See Carter v Gilmore [1975] 49 ALJR 360.

Quantum

1. The plaintiff’s pleaded case[32] claimed that he had sustained the following injuries:

(a)        Fractured first right rib at the costo vertebral junction;

(b)        Fractured second rib at the costo vertebral junction;
(c)        Chronic soft tissue injury to the cervical spine; and
(d)        Chronic soft tissue injury to the upper thoracic spine.

[32]Exhibit 36, para 19.

1. However, despite the clear medical evidence that the plaintiff did not suffer any rib fractures,[33] he continues to believe that he suffered fractured ribs.[34] The plaintiff’s counsel, however, accepted that no rib fractures were sustained.

   [33]Exhibit 8.

   [34]T1-48 – 1-49.

1. The plaintiff was taken to the Toowoomba Base Hospital Emergency Section after the collision and a chest x-ray was taken.  The plaintiff was discharged from Toowoomba Hospital about 4.30 pm on 19 March 2007, with pain medication, and went back and stayed for a couple of weeks with his girlfriend Amanda Wood who resided at 9 Back Ma Ma Creek Road, Grantham.[35]

   [35]T2-2, T1-22.

1. The plaintiff gave evidence that he was very sore, it was very difficult for him to get around, that he couldn’t stand for too long and that he had pain between the two shoulder blades up into the skull and radiating down to his shoulders.  The plaintiff undertook physiotherapy treatment paid for by Workcover and he attended on his general practitioner Dr Ellepola on a regular basis[36]

   [36]T1-22 – 1-23.

1. The plaintiff attempted to return to work at Amalgamated Plastic Engineering on one occasion in May, 2007 but was still in pain and was told by his employer, Shane Saunders, to go home, which he agreed to do.[37]

   [37]T1-23 – 1-24.

1. By 30 March 2007 the plaintiff was able to drive from the Brisbane Transit Centre to Brighton (having caught a bus from Gatton to Rosewood and a train from Rosewood to Roma Street) and was able to drive from Brighton back to his residence at Ma Ma Creek Road with his daughter whom he had collected for an access visit.[38]

   [38]T1-64 – 1-65.

1. When the plaintiff returned his daughter to Brighton on 5 April 2007 he had a telephone conversation with Ms Veneta Saunders (the co-proprietor of Amalgamated Plastics Engineering) in which he told her that he was in great pain, had just seen the doctor at Gatton, could only stand up for 20 minutes at a time and otherwise had to lay down again.[39]  Although the plaintiff could not recall this conversation, I accept that the conversation occurred as Ms Saunders outlined it, and further that the plaintiff was untruthful in telling Ms Saunders where he was and the level of his symptoms at the time.  The time and location of the relevant telephone call was able to be identified from the mobile phone records maintained by Amalgamated Plastics Engineering who provided and continued to pay for the mobile phone utilised by the plaintiff even when he was off work on Workcover.[40]

   [39]T1-65 – 1-66; T2-51 – 2-52.

   [40]T2-29 – 2-50.

1. There are further issues which raise serious concerns as to the plaintiff’s credibility.  In particular the plaintiff’s Notice of Accident Claim Form disclosed only the following:-

(a)Motor vehicle accident in 1994 in which the plaintiff sustained a whiplash injury;

(b)Two rib cartilage injuries sustained while playing football;

(c)An operation on his right knee in 2002;

(d)Two operations on his left knee in 1993 and 1994.[41]

In fact, the plaintiff had made a total of eight Workers’ Compensation claims (including in relation to these current proceedings). The following were in respect of back injuries:-

(a)On 12 January 1983 the plaintiff strained his back while bending over to remove a paint roller;

(b)On 1 July 1987 the plaintiff strained his thoracic spine while bending over to pick up sheet metal;

(c)On 29 September 1987 the plaintiff strained his back when he tripped over some steel lining on the ground; and

(d)On 23 January 1996 the plaintiff strained his lower back at work.

[41]T1-61.

1. The plaintiff accepted that he had not made full disclosure of all his prior injuries in the relevant Notice of Accident Claim Form.[42]  It is submitted on behalf of the defendants (and I accept) that the plaintiff’s attempts to explain this level of non- disclosure was “entirely unsatisfactory” and further the medical histories provided by the plaintiff to doctors Meibusch, Pentis and Morris were neither “candid nor accurate”.  It is clear from the medical evidence that the applicant has a long and extensive history of medical problems involving his lumbar and thoracic spine.  As a consequence, I consider that, in the absence of supporting evidence, the oral evidence of the plaintiff as to his symptoms arising from the collision on 19 March 2007 should be approached with a significant degree of caution.

   [42]T1-61.

1. The evidence of Dr Meibusch[43] indicates that the collision on 19 March 2007 “aggravated pre-existing degenerative changes in [the plaintiff’s] cervical spine” which did not require either a surgical procedure or other treatment other than pain relief.  Dr Meibusch considered that the aggravation would require another couple of months to substantially subside.[44]  In a conference with counsel for the defendants (the file note becoming evidence in the proceedings), Dr Meibusch stressed that what had occurred was an exacerbation of the plaintiff’s pre-existing degenerative disease.[45]  Dr John Morris[46] also considered the collision of 19 March 2007 had aggravated pre-existing symptoms of whiplash arising from a motor vehicle accident in 1994 which were asymptomatic at the time of the collision on 19 March 2007.  Dr Morris took the view that the prognosis was “for continuation of mild symptoms but as occurred in the 1994 episode these [symptoms] are likely to improve and eventually resolve.”[47]

   [43]Exhibit 10.

   [44]Exhibit 10 p.2.

   [45]Exhibit 10A.

   [46]Exhibit 11.

   [47]Exhibit 11 p.7.

1. Dr Pentis, however, considered that the plaintiff was left after the 19 March, 2007 collision, with a residual impairment which he assessed as 10% whole person impairment.[48]  Dr Pentis conceded in cross-examination that the fact that there were no rib fractures (as he had been incorrectly informed by the plaintiff) reduced his assessment of impairment to 5% of whole person. However, Dr Pentis maintained that the soft tissue injury from the collision on 19 March 2007 would have compounded the pre-existing degenerative process in the plaintiff’s spine and the effect would be an ongoing, rather than transient, aggravation.[49]

   [48]Exhibit 12 p.5.

   [49]T1-78.

1. It is then necessary to consider the plaintiff’s post collision work history.  The plaintiff had his employment with Amalgamated Plastics Engineering terminated on his return to work on 1 August 2007 (the company had restructured its operations to provide plastics for just a single client during the plaintiff’s recovery process.)[50]

   [50]T2-53.

1. The plaintiff then obtained a job in November, 2007 with the Truss Company, then he subsequently worked for Cardinal Seafoods, then for the Goodlife Gym, before he returned to work at Cardinal Seafoods as a dispatch driver.  With the exception of the employment at the Goodlife Gym (which was an office job, in which the plaintiff could see no prospect of a progression to management)[51] the plaintiff’s employment since the collision has all involved significant physical activity.

   [51]T1-27.

1. I consider that the following findings therefore are warranted on the evidence namely:-

1.          The plaintiff:

(a)        Did not suffer any fractured ribs in the collision;

(b)        Endured pain and suffering and loss of the amenities of life;

(c)        Required medical, rehabilitative and pharmacological treatment;

(d)        Was unable to undertake his employment as an “Assistant Manager” at Amalgamated Plastics Engineering (a position which substantially required him to work as a sales person, and involved significant time driving a motor vehicle); and

(e)        Incurred the cost of medical treatment and other out of pocket expenses.

2.The injury which the plaintiff suffered to his cervical or thoracic spine was an aggravation or exacerbation of pre-existing degenerative changes and, in a practical sense, had substantially resolved by 1 August 2007.

3.Any ongoing impairment of the plaintiff arises from pre-existing degenerative changes in the plaintiff’s cervical and thoracic spine as detailed in the CT scan on 26 April 2007.[52]

4.The plaintiff’s ongoing impairment, if any, is minor, does not require further medical treatment, and has not (and will not) impact on the plaintiff’s employability, and capacity for employment as a sales person or manager or capacity to study.

[52]Exhibit 8 – report of Dr Yunus Solwa.

1. I make the following findings as to damages.

1.         General damages[53]

  $4,000.00

2.         Special damages

                  $5,937.23

3.         Interest on past special damages[54]

  $661.00

4.         Future special damages

            
             I do not consider that the plaintiff has               
             shown any basis on which to claim “future   
             special damages” as asserted in respect of
             gym membership, medical expenses and
             pharmaceutical expenses. The plaintiff’s               
             ongoing impairment, if any, I find is minor   
             only.

Nil

5.        Past economic loss (from 19 March 2007 – 2 November 2007).

   In my view it was reasonable to allow the    

            plaintiff three months to find a new job   
            once he was considered fit to return to work.

                $16,359.85

6.       Interest on past economic loss[55]

  $530.41

 7.      Loss of superannuation contributions

                  $1,472.39

 8.      Future Economic Loss

          The plaintiff has approximately 18 years in the workforce before retirement at 65 years.  None of the medico-legal or rehabilitation reports appear to preclude the plaintiff from working in either his existing employment (he currently works as a delivery driver for Cardinal Seafoods) nor has he been restricted in any of his subsequent employment since 2 November 2007 while employed by the Truss Company, Goodlife Health (Gym Membership Sales) and Cardinal Seafoods.  The plaintiff has undertaken further studies at Griffith University and intends to complete a Ph D.  At best for the plaintiff, he has a “general stiffness and soreness” that he describes as “sort of being there all the time”.[56]  In my view therefore the appropriate assessment on a global basis for the plaintiff’s loss of earning capacity would be $15,000.00 with no component for loss of superannuation.

                $15,000.00

9.  Fox v Wood component

                  $1,837.00

                 TOTAL

                $45,797.88

[53]Assessed under item 89 (minor cervical spine injury) ISV range 0-4.

[54]3% of $1,081.35 over 2.52 years

[55]Calculated on $7,015.95 at 3% over 2.52 years (Workcover benefits totaled $9,343.90).

[56]T1-27.

Apportionment

1. As I have found, the plaintiff, in my view, was 75% responsible for the collision.  Accordingly I order judgment for the plaintiff against the first and second defendants in the amount of $11,449.47.