Hudson Building Supplies Pty Limited v John Evans & Ors

[2008] NSWDC 37

CITATION:	Hudson Building Supplies Pty Limited v John Evans & Ors [2008] NSWDC 37
HEARING DATE(S):	30-31 January 2008
JUDGMENT DATE:	13 February 2008
JURISDICTION:	Civil
JUDGMENT OF:	Goldring DCJ
DECISION:	Verdict for the plaintiff in sum of $323,154.04 Note notional assessment of $591,051.77 reduced by 20% First & Second Defendant: 60% responsible Third Defendant: 20% responsible Mr Forth: 20% responsible
CATCHWORDS:	Negligence - Breach of duty - Failure to drive a sufficient distance behind vehicle in front
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 The Australian Road Rules, Regulation 126
CASES CITED:	Knight v Maclean [2002] NSWCA 314 Derrick v Cheung (2000) 181 ALR 301
PARTIES:	Hudson Building Supplies Pty Limited (Plaintiff) John Evans (First Defendant) Gregory Nunn (Second Defendant) Stephen Dye (Third Defendant)
FILE NUMBER(S):	4647 of 2005
COUNSEL:	Mr P. Rickard (Plaintiff) Mr P. Nolan (First & Second Defendant) Mr M. Elkaim SC with Mr P. Sternberg (Third Defendant)
SOLICITORS:	Goldbergs (Plaintiff) T L Lawyers (First & Second Defendant) Moray & Agnew (Third Defendant)

JUDGMENT

1 HIS HONOUR: This is a claim by an employer to recover amounts of workers compensation, which it paid to a worker who was injured in a motor vehicle accident on 11 March 2003, from the drivers of two other vehicles that were involved in the accident.

2 Shortly after 6 a.m on that day Christian Forth was driving the plaintiff's four tonne Hino truck from his home at Lawson to his work at Rouse Hill. He was driving south east along Richmond Road at Berkshire Park, approaching the intersection with St Mary's Road. He collided with the rear of a ten tonne International truck owned by the first defendant and driven by the second defendant, Mr Nunn. At the same time, or within a fraction of a second later, a Holden Rodeo utility, owned and driven by the third defendant, Mr Dye, ran into the rear of the Hino.

Mr Forth's injuries

3 Mr Forth was very seriously injured after he was trapped in the cabin of the Hino. He had to be cut free by State Emergency Services personnel, and was taken to Nepean Hospital. He received injuries to his head and was unconscious for some time. Mr Forth has no memories of the events of 11 March, from the time he left home until he was being taken from the intensive care unit in the hospital to a ward, some five days later. His major injuries were to his right leg. He fractured the right patella, but, more seriously suffered serious degloving of the leg in the area of the right knee. He also suffered a similar, but slightly less extensive, injury on the left shin. He has undergone six or so surgical procedures to graft skin from other parts of his leg to the injured areas. The grafts did not always take, and the procedures had to be repeated on several occasions. The skin remains extremely sensitive. The treating plastic surgeon, Dr Preketes, has advised him to wear trousers and not to expose his leg to the sun. Slight bumps to the shin cause the skin to break, and at the time of the hearing he had a large ugly open wound in the area where he had bumped his leg the previous weekend. His right leg has a number of keloid scars which are most unsightly, and the left leg also has keloid scars.

4 As a result of his injuries, Mr Forth was unable to squat or kneel for some time. He has undertaken extensive physiotherapy and counselling. He has cooperated with a rehabilitation service, with the result that he has developed techniques of squatting and picking up things from the ground.

5 At the time of the accident Mr Forth was employed by the plaintiff as a delivery truck driver. His job involved loading building supplies, particularly timber and bags of cement, on to the tray of the truck, taking those products to customers and unloading them. The bags of cement weighed up to 40 kg each and some of the timber could weigh up to 50kg. It is common ground that his injuries mean that Mr Forth will never be able to do similar work again.

6 After about six months, with the cooperation of the rehabilitation provider, he was able to return to light duties with the plaintiff, working in the gatehouse and in customer service. When he was doing these light duties, he was provided with a seat. At first he returned to work on a part-time basis, but gradually he became full-time. However, he had a number of periods off work when he underwent further surgical procedures in hospital and took time to recover from them.

7 In October 2006, along with other employees of the plaintiff, Mr Forth was retrenched. At that time he needed further medical treatment, and Dr Preketes certified that he was fit to return to work in December of that year. With the assistance of the rehabilitation provider he applied for several positions, but was unsuccessful until August 2007, when he obtained his present position as a storeman with Adorn Tiles. He still holds this position and has not suffered significant wage loss.

8 He has had, however, to spend long periods at home when he has not been able to move and has spent most of his time sitting, watching television, until his leg was sufficiently recovered to enable him to regain mobility. His leg causes continuous dull pain, but because he does not wish to become addicted to painkillers, he does not take pain killing medication, save for an occasional aspirin or paracetamol for headaches. He lives with his partner and two-year-old daughter, but he says that as a result of his injuries, his sex life and general enjoyment of life have been affected significantly.

9 There is no serious dispute about his medical condition. Dr Deveridge assesses him as having a whole person impairment of 27% and Dr Fry at 24%. A percentage whole person impairment can only be a rough guide to the degree to which a person suffers non-economic loss, but in Mr Forth's case that non-economic loss is significant. He has suffered, and will continue to suffer pain, disfigurement and the need for constant medical treatment. He has shown exceptional fortitude and ability to cope with pain and adversity. I assess his damages, under the Motor Accidents Compensation Act, for non-economic loss at $200,000.

Liability

10 In order to decide the issues in this case I have to determine whether any defendant was negligent, and if so, whether and to what extent Mr Forth failed to take reasonable care for his own safety. If any of these persons is liable, I have to examine the causation of the injuries to Mr Forth, and the proportion, if any, which the breach of duty of any person contributed causally to those injuries.

Mr Nunn

11 Mr Nunn was the driver of the ten tonne International truck. I do not regard him as a reliable witness at all. The impression he made on me was that he was fabricating evidence to place himself in the best possible light and to exculpate himself from any blame. His memory was poor, and his estimates of time and distance were, if accurate at all, vague, to say the least. For example, he gave evidence that after he had commenced to slow down and prepare for a right-hand turn from Richmond Road into St Mary's Road, two vehicles passed him on the left in a "slip lane" which is clearly shown in the photographic evidence. Mr Dye, who was involved in the accident, had been following Mr Nunn's vehicle for several kilometres. His evidence was that the Hino was the only vehicle between his vehicle and Mr Nunn’s for the whole of this distance. I should say that where there is a conflict between the evidence of Mr Nunn and that of Mr Dye -- or indeed that of any other witness -- I would prefer the other witness.

12 Mr Nunn admitted that he began to indicate that he intended to make a right-hand turn only 20 metres before he reached the intersection. I am not satisfied, on the balance of probabilities, that he indicated his intention to turn right at all, but if he did, it was not until he was 20-30 metres from the intersection, and therefore any indication would not warn vehicles traveling behind him in sufficient time to allow them to avoid a collision. In cross-examination, he attempted to depart from this figure, but he could not indicate exactly how far before the intersection he did indicate his intention to turn right. He said that he told the police that he was level with a tree. This statement does not appear in any of the police records. The photograph shows that there was a tree on Mr Nunn's right about thirty metres from the intersection. Mr Dye did not see any indicator light, because the Hino obscured his vision of Mr Nunn’s vehicle. Mr Forth was unable to recall anything. Given the general unreliability of Mr Nunn's evidence, I find on the balance of probabilities that either he did not indicate his intention to turn right at all, or that if he did, he did not do so until he was no more than twenty to thirty metres from the intersection.

13 This failure is itself an indication of negligence, which is sufficient to decide the issue of whether liability should or should not attach to Mr Nunn. I find that the failure to indicate was a significant causal factor leading to the accident.

14 A further allegation of negligence against the first and/or second defendants is that the vehicle did not have, at the relevant time, any tail lights or real warning lights. Mr Nunn says that his vehicle was in good working order and that he checked it. As I have indicated, I find him an unreliable witness. The police witness, Senior Constable Gauci, says that, some time after the collision, in the company of RTA officers, he switched the lights on the International truck on and found they were functioning. I have no reason to doubt Senior Constable Gauci's evidence that the lights were working at that time. However, Mr Dye, who I find to be thoroughly honest and reliable, says that when he first saw Mr Nunn's vehicle, at Richmond, when he was stopped, the International had its headlights, but rear or side lights, illuminated.. I find that the facts accord with the version of events given by Mr Dye and I reject that given by Mr Nunn, that is, I find that immediately before the collision the tail and other rear lights on the International truck were not illuminated.

15 I accept that, as the driver of a heavy vehicle, Mr Nunn would have slowed the vehicle by changing gears before he applied the brakes and activated the brake lights, if they had been working, but this would not give any indication to following traffic that he was reducing speed.

16 While the absence of tail and brake lights does amount to a breach of duty of care towards other users of the road, it was, in my opinion, not as significant, as a causal factor in the accident, as the failure to indicate the right-hand turn. However, the fact that the vehicle had no tail or brake lights would make it even more difficult for a driver, such as Mr Forth, travelling immediately behind the International truck, to see that it was slowing down.

Mr Dye

17 Mr Dye was the driver of the Holden Rodeo utility, which was the third vehicle involved in the accident. His evidence was that he left his home at North Richmond to go to work, and was stopped at a traffic light in Richmond when he first saw the International truck. He noticed something odd about the lights on that vehicle, as I have already mentioned. The traffic lights changed and Mr Dye moved onto Richmond Road, or the road that becomes Richmond Road, immediately behind the International truck. Because it had no rear lights, he said that he slowed down and dropped back. At the roundabout, where Richmond Road intersects with George Street, Mr Dye said that two other vehicles were on the roundabout, and he stopped to let them pass. At that stage the Hino truck entered the roundabout and took up a position immediately behind the International truck. Mr Dye drove his vehicle immediately behind the Hino. The three vehicles continued for several kilometres in a south easterly direction, travelling at a speed of between 70 and 80 kilometres per hour. The speed limit on Richmond Road is 80 kilometres per hour.

18 Mr Dye says that when he first saw the International truck, it was still dark. This is why he noticed the lights. It is also why he slowed down to avoid colliding with the rear of the International truck. Mr Nunn said that it was becoming lighter, but his headlights and, according to him, the rear lights on the truck were lit. He denied switching them off. The police and ambulance reports suggest that police and ambulance did not arrive at the accident scene until between 20 and 30 minutes after the accident occurred. By that time it was full daylight, but the comments of police and ambulance officer are of little help, because they do not indicate the light conditions at the time of the accident. Mr Dye and Mr Nunn both said that the traffic on Richmond Road at the time was relatively light, although Mr Nunn said that he stopped at the intersection because there was oncoming traffic. The police reports described traffic as heavy, but it is significant that police were not at the scene when the accident occurred, and only arrived some time later.

19 Mr Dye, as I have indicated, could not see the rear of the International truck because the Hino was between them. He said that he was driving between four and five car lengths behind the Hino. He did not notice anything unusual until suddenly he saw the Hino brake and collide with the International truck. At this time he applied his brakes. He was questioned about why he did not divert into the slip lane, and he said that he did not have time to do so. He collided with the rear of the Hino.

20 The front of the Hino, which had a forward control cab, collided with rear of the International. Mr Nunn says that his vehicle was thrown two or three metres to the left by the impact. It is clear that the pressure on the cab of the Hino caused it to compress, which is the immediate cause of the injuries to Mr Forth. What is in issue in these proceedings is the cause of the pressure on the cab. The experts seem to be in no doubt that the impact between the International and the Hino did cause some of this pressure. What is less clear is the effect of the collision between the Holden Rodeo and the Hino.

21 It is not clear as to whether the collisions occurred simultaneously or whether the Hino and the Holden Rodeo collided a very short time after the collision between the International truck and the Hino. Mr Nunn said that if there was a delay it was only a fraction of a second. He used the expression “hundredths of a second”. Mr Forth could not recall, and Mr Dye was not aware of, when the two front vehicles collided. This question could be important in relation to causation of Mr Forth's injuries. I find that if the two collisions were not exactly simultaneous, the time between them was so minimal that when the Rodeo collided with the Hino, the Hino had not finally come to rest after its collision with the International.

22 The Australian Road Rules, Regulation 126, provides, "A driver must drive a sufficient distance behind the vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle."

23 Both Mr Forth and Mr Dye received traffic infringement notices on the basis that they were drivers of vehicles which were not driven a sufficient distance from the vehicle in front to enable them to stop safely to avoid a collision. Mr Dye paid the penalty and, even if I did not find on the evidence that he was in breach of the duty of care, admitted to so doing by his action. Mr Forth took the matter to the Windsor Local Court, but was unsuccessful in his challenge. Mr Elkaim, Senior Counsel for the third defendant, submitted, on the basis of a passage from the judgment of Heydon JA in Knight v Maclean [2002 NSWCA 314, particularly at paragraphs [40] and [57], that the Court must look at the actions of any driver to see whether or not they are reasonable in the circumstances. In those passages his Honour was applying the principle established by the High Court in Derrick v Cheung (2000) 181 ALR 301. Both these cases concerned the situation where a pedestrian ran onto a roadway into the path of an oncoming vehicle. In some such cases the driver may be found not to be negligent.

24 In my view, such a submission cannot be made in a case like this, because of Regulation 126, where the driver in question is driving behind another vehicle, if the evidence shows that a driver was not travelling sufficiently far from the vehicle in front of him to stop safely. In this case both Mr Forth and Mr Dye in fact were unable to avoid colliding with the vehicle in front of them, even though I have found that, in failing to indicate and in having defective lighting, the owner and driver of that vehicle were themselves in breach of their duties of care. It is such a situation, where the unforeseen occurs through negligence, or even without fault, that is envisaged by Regulation 126. I find that both Mr Dye and Mr Forth breached their duty of care.

The expert evidence on causation.

25 The third defendant, Mr Dye, qualified an expert engineer, Mr Griffiths, and the plaintiff qualified another traffic engineer, Mr Johnston. Both experts were qualified to express an opinion on the matters in issue. Both proceeded to form their opinions on assumptions, which were, in both cases, not entirely justified. However, the assumptions on which Mr Griffiths based his opinion were so inaccurate that I cannot place great weight on his opinion. In particular, Mr Griffiths was instructed that Mr Dye was travelling at 80 kilometres per hour, that the rear of the Hino truck was stationary when the Holden Rodeo hit it, and that the Holden Rodeo did not push the Hino truck any further under the rear of the International truck. Each of these instructions was based on facts that were in issue at the trial and were, in my opinion, ultimately not proved to exist on the balance of probabilities. Mr Dye's evidence was that he was travelling at seventy to seventy five kilometres per hour, and this was not challenged. It was a real issue as to whether the Hino had ceased to move forward when the Holden Rodeo hit it. To this extent Mr Griffiths was assuming something that was in issue in the trial.

26 Mr Johnston, on the other hand, assumed that Mr Dye must have applied his brakes at a point measured by the police to be 21 metres from the front of the Rodeo utility. It became clear in the cross-examination of both experts that the commencement of skid marks on the road surface indicates that point at which the wheels "locked", that is, where excessive friction between the tyre and the road surface commences. A person may well commence braking some distance before this point is reached without causing skid marks, because the brakes initially were working properly and the wheels did not lock.

27 In any event, the skid marks caused by the tyres of the Hino, as well as those caused by the Rodeo, were clear in the photographs that were in evidence. These were clear marks on the road surface extending rearwards from the front nearside wheel of the Hino, indicating that the brakes of that vehicle were also applied with some force. Senior Constable Gauci said that he did not notice these. They are less prominent than those from the Rodeo, but they are so clear in the photographs that I am justified in making the necessary inferences.

28 Nevertheless, I found Mr Johnston to express his methodology more clearly than did Mr Griffiths, and the assumptions on which his opinion was based was more closely in accordance with the facts as I find them. Therefore, where there is a conflict between the evidence of Mr Griffiths and Mr Johnston, I prefer that of Mr Johnston. This is particularly important in relation to the estimate of the impact speed of the Holden Rodeo at the time it came into contact with the rear of the Hino. Mr Johnston initially estimated this speed at about 49 kilometres per hour, but his observation of the material supplied to him convinced him that this was inconsistent with the damage to the Holden Rodeo shown in photographs. He therefore revised his estimate of the impact speed downwards, to about 30 kilometres per hour, which is still a sufficient speed to cause an impact that exerted pressure on the cabin of the Hino. Mr Griffiths estimated the impact speed at between 4 and 6 kilometres per hour, based on what he said were observations on tests in relation to bumpers carried out in the United States. Although he was cross examined closely about this, he maintained that these tests were relevant to give him a "feel" for the type of damage that might have been caused. It was apparent from the photographs in evidence that the front of the Holden Rodeo had been forced downwards so that the contact between that vehicle and the rear of the Hino was mostly contact between the base of the tray of the Hino (and possibly some other part of the structure of the vehicle in that area) and the bonnet of the Rodeo, causing the latter to crumple in a "concertina" fashion. Mr Griffiths was adamant that there could not have been structural damage to the chassis or engine of the Rodeo because of the lack of what he called "induced" damage. Mr Johnston did not express an opinion on this because he said that the photographic material which he had examined did not reveal such damage, but he said that it was possible that there might have been such damage which was not evident in the photographs. In this respect I also prefer the evidence of Mr Johnston to that of Mr Griffiths.

29 Mr Johnston also pointed out that photographs showed a type of gouge mark on the upper part of the mudguard panels of the Rodeo which indicated that the Rodeo had moved under the tray of the Hino to a point marked by the end of the gouges, and had then moved back. This indicates that the Rodeo and the Hino collided with considerable force.

30 I find on the balance of probabilities that the Holden Rodeo did strike the rear of the Hino truck with sufficient force to drive it forward, thus increasing the pressure on Mr Forth's legs, which were trapped in the cabin of the Hino.

Apportionment of causation of Mr Forth's injuries

31 I find that the major cause of the collision was the failure of Mr Nunn to indicate that he was slowing down and preparing to turn right. The negligence of Mr Forth and of Mr Dye, in driving too closely behind the vehicle in front of each of them, so that they could not stop in time to avoid the collision. I would apportion the responsibility for the injuries to Mr Forth as follows:

Mr Nunn -- 60%
Mr Forth -- 20%
Mr Dye -- 20%.

Assessment of damages

32 The plaintiff made submissions as to the amount of damages that might have been awarded to Mr Forth under the provisions of the Motor Accidents Compensation Act. I have already indicated that, because of the nature of Mr Forth's injury is pain and suffering, his disfigurement, and his repeated hospitalisation, his damages for non-economic loss should be assessed at $200 000.

33 There was a dispute as to the amount of his past economic loss. The defendants were prepared to agree on a figure of $49 496.06. This is less than the amount the plaintiff claims, because it is reduced for the period following Mr Forth's retrenchment, when the defendants say that he is inability to earn was not due to his injuries, but rather to the fact that he was retrenched. The plaintiff claims a sum of $62 736.33. Which has the same mathematical basis that also includes earnings lost during the period of retrenchment. I find that it was more probable than not that Mr Forth's injuries were a significant factor in causing him, rather than some other employee, to be retrenched and allowed the amount claimed by the plaintiff. It follows that the amount to be awarded for loss of pass superannuation is $5659.21.

34 Past medical expenses are agreed at $143 656.23. It is clear that Mr Forth will require future medical attention. Dr Preketes estimates that future surgical attention to his skin will cost between $10 000 and $100 000. Dr Deveridge agrees that some surgery will be required in the future. In the circumstances, some future medical treatment will definitely be required. I am not prepared to allow the sum claimed by the plaintiff, but I would allow the sum of $70 000, which includes provision for the cost of surgery, physiotherapy if required, consultations with general practitioners and all other media could treatment and medication.

35 The plaintiff claims that Mr Forth is entitled to damages for loss of future earning capacity based on a loss of $200 per week to age 65, less discount for the ordinary vicissitudes of life. At present Mr Forth has not suffered any significant loss of earning capacity, but the condition of his legs makes it likely that he will inevitably do so. Because it is difficult to quantify the amount of his loss, it seems appropriate to me to awarded him a “Cushion" of $109 000, including provision for future superannuation.

36 The damages that I would have awarded to Mr Forth under the motor accidents compensation Act amounts to $591 051.77.

37 The plaintiff is entitled to interest on the indemnity sum. This is calculated at $49 944.78, a figure that was not challenged by any defendant. The verdict will include that amount.