John Jaajaa v Australian Capital Territory
[2012] ACTSC 130
•3 August 2012
JOHN JAAJAA v AUSTRALIAN CAPITAL TERRITORY
[2012] ACTSC 130 (3 August 2012)
Personal Injury – collision involving bus and bicycle – credit – causation – extent of plaintiff’s injury – unreliability of plaintiff’s evidence by reason of mental illness
Civil Law (Wrongs) Act 2002 (ACT)
Wyong Shire Council v Shirt (1980) 146 CLR 40
No. SC 392 of 2011
Judge: Sidis, AJ
Supreme Court of the ACT
Date: 3 August 2012
IN THE SUPREME COURT OF THE )
) No. SC392 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:JOHN JAAJAA
Plaintiff
AND:AUSTRALIAN CAPITAL TERRITORY
Defendant
ORDER
Judge: Sidis, AJ
Date: 3 August 2012
Place: Canberra
THE COURT ORDERS THAT:
Verdict for the defendant.
The plaintiff is to pay the defendant’s costs as agreed or assessed.
The exhibits are returned.
My reasons are published.
Mr John Jaajaa claimed damages for injuries that he allegedly suffered on 19 June 2009 when he was involved in a collision between his bicycle and a bus operated by the defendant. He alleged that there was negligence on the part of the driver of the bus. The defendant denied negligence, alleged contributory negligence on the part of the plaintiff and challenged the plaintiff’s claims of injury and disability.
Background
The plaintiff was 21 years old at the time of the accident. He is now 24.
He was educated part of the way through Year 11 at high school. He attempted Year 11 twice but failed to complete on both occasions.
After leaving school he was employed in a number of short term unskilled positions, including work in his mother’s ice creamery and in her motel in Cooma. He also had short term periods of work as a painter, a security guard at night clubs and at the Tax Office and work as a steward at Parliament House and the Hyatt Hotel.
For one year and eight months he worked in his mother’s motel in Cooma, undertaking a number of tasks that included office and reception work, preparation and service of breakfasts and cleaning of rooms. He said he did this on an unpaid basis, receiving free board and lodging at the motel and applying the value of his work to the repayment of money his mother advanced him to purchase a $77,000 car.
After this period he moved to Canberra to work as an insurance salesman. This work ended three months prior to the accident when he lost his driving licence.
The plaintiff said that at the time of the accident he intended to apply for entry into the Royal Australian Navy. He said he was training to improve his fitness so as to enhance his prospects of succeeding in this application.
He said that at the time of the accident he was physically well. He had no problems affecting his back, neck, shoulder, collar bone, hips or feet. He was an avid cyclist, riding 100km daily, 3-4 times a week and sometimes up to 200km.
There was some pre-accident medical history. In March 2004, the plaintiff suffered an injury to his left elbow when he jumped from a 3.5 metre wall. In June 2006, he suffered an injury to his left shoulder in an accident involving a motor cycle. It appeared that this accident was more serious than the plaintiff originally indicated. He agreed that in addition to the fracture to his left shoulder, he suffered a head injury, having being left unconscious at the time of the accident and that he required hospitalisation for a week. He agreed that at the time of that accident he was under the influence of alcohol and marijuana and that he came off his motor cycle at high speed.
The accident
On 19 June 2009 at about 3.30pm the plaintiff was riding his bicycle down a hill in a northerly direction in Krefft St, Florey towards the intersection with Barnard Circuit. He said he was travelling at about 30-40km/h. The defendant’s bus over took him. He estimated the speed of the bus to be 50km/h. The bus driver, Mr Kevin Douglas said he was travelling at 60km/h.
The plaintiff said that the bus overtook him at about 50-100 metres from the intersection with Barnard Circuit. When the bus was about 30 metres ahead of his position, the driver braked and indicated at the same time and started to turn the corner. The plaintiff said that he was unable to bring his bicycle to a stop. He applied his brakes to both the front and rear wheels and attempted to go around the bus but did not have time to do so. He therefore stayed to the left hand side of the road close to the gutter. He collided with the left hand side of the bus, near its centre, but closer to the rear wheels. The plaintiff said that he put out his hands to push away from the bus. At this time his foot became detached from the cleat and he described his movement from there as rolling with the bicycle, being thrown back. He said that he then moved to the side of the road and removed his shoe while the bus continued on his journey.
The plaintiff initially told the court that his right foot went under the rear wheel of the bus. He subsequently said his right foot and pedal came into contact with the bus.
He said that part of his bicycle went under the rear wheels of the bus. He thought that the bus ran over a point about one third of the way from the bottom of the wheels. He was unsure if the bus ran over the frame of the bicycle.
The Australian Federal Police report (Exhibit B) included a hand written statement of a witness who said that she saw the bus and the cyclist approaching the intersection and saw both of them starting to turn left into Barnard Circuit. She did not see, but she heard the impact between the bus and the cyclist. She then saw the plaintiff and his bicycle in the gutter and she saw the plaintiff hobble to the side of the road. She stopped and assisted him.
Mr Douglas at the time of this accident had 36 years experience as a bus driver, of which 31 years have been in the Australian Capital Territory as an employee of the defendant. Mr Douglas emphasised that he had no prior record of accidents in the course of his bus driving career. He was also an experienced and active cyclist.
Mr Douglas said that he was familiar with the route that he took on 19 June 2009, having driven it for about one year prior to that date. He said that the accident occurred at about 3.30pm when the area was busy with parents and children on foot and in cars as they left the two schools in the vicinity of the area in which Mr Douglas was driving.
He said he turned slowly at the corner of Krefft Street and Barnard Circuit, slowing to 10-15km/h to turn the corner. He said it was necessary to do this because his bus, at 40 feet, was longer than normal and it was necessary to drive over the gutter with one of the two back wheels of the bus in order to take the corner. For that reason it was necessary to take the turn at a very slow speed to protect his passengers who, at this time of the day, were mostly children.
As he proceeded downhill he saw the usual traffic and he saw the plaintiff to his left. He noticed that he was riding a road bicycle, travelling quite fast with his head down and that he was using an iPod. After passing him, he slowed down to go around the corner. Mr Douglas said he gave the plaintiff room when he passed him.
After passing the plaintiff, he applied his brakes without force because he had children on board. He then indicated his intention to turn left and to alert drivers waiting to come out of Barnard Circuit who were waiting to turn left or right.
After the passing the plaintiff, braking and indicating, he looked into the left hand mirror through which he saw the plaintiff a fair way back. Having made sure it was clear, he turned the corner in the usual way and proceeded towards the high school that was his destination, 200metres from the intersection.
On returning to his depot, he was informed of an accident involving a cyclist. He told his supervisor that he had heard and seen nothing of an accident and that the children on the bus said nothing of about it. With his supervisor he checked the indicator and brake lights on his bus to confirm that they were fully operating.
Mr Douglas was referred to footage from a CCTV camera that was inside the bus that recorded that a child was standing beside him at or around the time of the accident. He said he spoke to her and told her to resume her seat. It appeared that she was in the process of returning to her seat when the footage available to the court ceased.
Credit
Mr Douglas’s evidence concerning the question, whether having passed the plaintiff, he saw him again in his left-hand mirror was somewhat confused.
He repeatedly stated that he looked in the mirror before starting to turn the corner and he saw the plaintiff some distance behind him. He was pressed as to whether he checked the mirror once or twice. He said he could not remember.
Photographs contained in the report of Jamieson Foley indicated that after the bus slowed to take the corner and at the point where the bus rounded to turn the corner the plaintiff caught up with the bus. Mr Douglas said he did not see the plaintiff there. It was clear from the CCTV footage that the plaintiff would have been visible at that point in the left-hand mirror.
Mr Douglas denied that he was distracted by the school girl standing beside him at the time he turned the corner. It was apparent from the CCTV footage that he did not move his head from the position where he was looking directly ahead while he spoke to her.
Mr Douglas agreed that the suggestion in the police report that the plaintiff’s vision was affected by the setting sun was unfounded.
In response to the question as to why there was no apparent movement of his head to indicate that he looked in the left hand mirror, Mr Douglas said this was unnecessary because the mirror was positioned to allow it to be viewed by moving his eyes without the need to turn his head.
Mr Douglas agreed that he did not tell police that it was necessary to drive over the gutter with his rear wheel in order to turn the corner. He said that this was because he did not regard it as significant. He said it was a common occurrence. He was shown photographs that were said to depict no evidence of tyre marks on the kerb and guttering at the relevant corner. I did note, however, that the police report stated that the rear wheels of the bus touched the gutter to the left.
The plaintiff argued that Mr Douglas’s evidence that he mounted the kerb with the wheel of the bus was untrue and that I should not accept him as a witness of credit. I did not agree. I thought that he was doing his best to answer the questions that were put to him, although he was somewhat confused at times.
However, the evidence concerning the question of whether the bus mounted the kerb, made no difference to the outcome. The conclusion was inescapable that Mr Douglas did not check his mirror in the 3 second period between the point at which it was likely that the plaintiff caught up with the bus and the likely point of impact.
The result was that I accepted Mr Douglas as a witness of credit. For reasons that I make apparent in my assessment of the medical evidence, I decided that Mr Douglas was to be preferred over the plaintiff on the question of the distance between the bus and the bicycle when the brake and indicator lights were operated.
I accepted that in all probability the plaintiff was some distance behind the bus when the defendant looked in the mirror before commencing his turn.
Liability
The issue to be decided was whether there was negligence on the part of Mr Douglas in not checking that mirror in that three second period and, if so, whether that negligence was the cause of the collision.
I did not consider that the failure to check the mirror over a three second period in these circumstances amounted to negligence. Mr Douglas’ passengers were school children. He was driving slowly, turning a corner that presented some difficulty in a longer than average bus. The area was busy with parents and school children on foot and in cars.
I accepted that it was necessary therefore that he maintain his forward vision as he negotiated the corner. I accepted his evidence that he checked the mirror before commencing the turn and that he saw the plaintiff some distance behind him.
I was reminded of the principles of Wyong Shire Council v Shirt (1980) 146 CLR 40 and I was taken to Section 43 of the Civil Law (Wrongs Act) 2002. The plaintiff argued that it was not reasonable of Mr Douglas to have failed to check his mirror when he knew the plaintiff was riding his bicycle in the vicinity of the bus.
I concluded that a reasonable person in Mr Douglas’ situation would not foresee, as a risk against which he should take precautions, that the plaintiff, having the opportunity to see the brake and left turn indicator lights on his bus, would continue to cycle at speed that would render him unable to avoid colliding with the bus.
It was a matter of regret that Mr Jamieson’s report was of little assistance in determining the issues between the parties. The initial report concluded that the bus had cut off the path of the plaintiff as he turned left into Barnard Circuit. His case was that the bus slowed to turn left so quickly that he was unable to bring his bicycle to a speed sufficient to avoid a collision with the bus. Mr Jamieson acknowledged in his supplementary report that he was asked deal with a number of scenarios that were no supported by the material with which he was provided.
I found no negligence on the part of Mr Douglas that resulted in the collision between the bus he was driving and the plaintiff’s bicycle.
Causation
Had I concluded that Mr Douglas was negligent at the time he turned the corner, I would not have been persuaded that the plaintiff met the requirements of Section 45 of the Act.
The plaintiff was unable to tell the court what Mr Douglas might have done to avoid a collision with the plaintiff had he seen him at the time the plaintiff caught up with the bus. The only solution offered was that Mr Douglas might have elected to proceed straight ahead rather than turning left. In my view, this would have been a virtually impossible course of action in the three second period between the plaintiff’s appearance at the back of the bus and the collision. Further it would have endangered other users of the road, particularly those who were waiting to exit Barnard Circuit, expecting that the bus would complete its left hand turn.
In those circumstances I determined that the plaintiff’s claim must fail and there will be a verdict for the defendant.
Contributory negligence
Had I determined that there was negligence on the part of Mr Douglas I would have concluded that there was significant negligence on the part of the plaintiff.
It was clear that he did not sufficiently control his bicycle so as to be able to stop and avoid a collision with the bus as it was turning into Barnard Circuit.
On that basis, I would have assessed the plaintiff’s contributory negligence at 60%.
Damages
I decided to deal with the claim for damages in the event that this matter proceeded further.
Physical Injury
The medical experts and treating practitioners agreed that the plaintiff suffered soft tissue bruising to his right foot as a result of which he suffered pain for several weeks. They agreed that this injury subsequently resolved entirely.
The experts agreed that it was possible that the plaintiff suffered injury to his sterno-clavicular joints, in particular in the right scapular region, The MRI scan of this joint produced a normal result. This injury was questioned by Dr. Stubbs and Dr. Burke, both of whom suggested that it could have been the result of the injuries suffered in the motor cycle accident in 2006. I noted that amongst the documents produced by the Sharp Street Surgery (Exhibit 10) was a report of Dr. Chandra concerning the plaintiff’s motor cycle accident in 2006 and reporting that he suffered a scapular fracture. Dr. Burke also noted that an injury to the sterno-clavicular joint would have resulted in significant symptoms at the time of the collision with the bus but there was no record of complaint of these symptoms at the Canberra Hospital.
Dr. Burke accepted that the plaintiff suffered soft tissue injury to his cervico-thoracic spine. He said that this injury had resolved.
Dr. Endrey-Walder said that mild facet joint damage was the potential source of the plaintiff’s intermittent low back symptoms but he did not suggest that this damage was causally related to the collision with the bus.
Dr Stubbs and Dr. Burke agreed that the plaintiff was suffering from no ongoing physical disability and that there was no impediment to his employment or requirement for domestic care. They said he needed no treatment for any physical condition.
Dr. Endrey-Walder suggested that the plaintiff was no longer suited to labour intensive work. He said nothing on the question of domestic care.
In contrast to these reports, the plaintiff complained of overwhelming pain affecting the whole of his spine. He complained of restricted range of movement in his arms as a result of shoulder problems. He said that his shoulders consistently “popped out”. He assessed his pain at 10 to 10 or even 11 out of 10 and said that he had suffered from pain to this extent on a daily basis from the date of the accident.
This evidence was in stark contrast to his admission that he continued to spend long periods of time using his skateboard and that he had resumed riding his bicycle.
Psychiatric Condition
It was apparent from the material that the plaintiff suffered from significant psychiatric illness and the issue became the extent to which the accident caused or aggravated that illness.
The illness had to be assessed against the background of marijuana use that the plaintiff said commenced at the age of 15. He denied that he was dependent upon marijuana at the time of the accident and said that he had developed a dependency since that time. He agreed that he used marijuana daily from the age of 15 in significant quantities, although he claimed that the quantities had increased and virtually doubled after the accident. He said that this substance was the only means by which he gained relief from his problems.
The Court had access to three medical reports that cast some light on the plaintiff’s mental condition. Ms Todoroska reported in October 2010 that the plaintiff had six sessions of psychological treatment commencing in June 2010. She said his attendance was sporadic, consistent with his cognitive dysfunctions. She diagnosed a number of disorders. She said that testing demonstrated significant cognitive impairment that impacted on the plaintiff’s day-to-day functioning and she was concerned about the state of his mental health. She said he needed at least 12 months of regular treatment as a starting point.
Ms Todoroska offered no causal attribution for the plaintiff’s condition, except that she stated that the plaintiff’s main stressor had been coping with the physical and mental effects of the accident on 19 June 2009. Her report made no reference to his use of marijuana.
Dr. Knox examined the plaintiff on 13 October 2011. He diagnosed the following conditions:
· Panic disorder with agoraphobia
· Pain disorder with psychological factors and a general medical condition.
· Major depressive disorder
· Avoidant personality disorder
· Hypochondria
· Marijuana dependence.
He said the plaintiff suffered from an impaired personality and that his use of marijuana and the effects of the drug made it difficult to be clear about certain aspects of his mental health. Dr. Knox said that the plaintiff’s poor memory was the result of anxiety and his regular marijuana use. As a consequence the plaintiff had been unable to give him a full history.
Dr. Knox reported that the plaintiff suffered his first panic attack at the age of 15 and that the significant impairment of his personality had been made worse by the dependence upon marijuana that had developed in his teenage years. As a result it was difficult to get a clear history from the plaintiff of his physical and mental health from the time of the 2009 accident. He believed, however, that the plaintiff’s depression and anxiety had been made worse as a result of the accident. He said the plaintiff had a poor prognosis. He was suffering from a high level of impairment with poor capacity to participate in treatment to the address his health problems.
Although Dr. Knox thought that the accident had increased the plaintiff’s anxiety and depression, he said the accident probably played a relatively minor part in his ongoing stress and disability. It was, however, a trigger in destabilising the plaintiff at a time when his personality and mental and mental health were precarious.
Dr. Knox said that the psychiatric impairment very significantly restricted the plaintiff’s capacity for employment and other areas of his life. He did not believe that the June 2009 accident had played a major part in this restriction on employment.
He said that the plaintiff warranted serious attention to his mental health.
The plaintiff was examined by Dr. Foce in November 2011. She was told that the plaintiff suffered recurrent intrusive recollections of the 2009 accident. She diagnosed post traumatic stress disorder and mild major depressive episode. She also diagnosed cannabis dependence. She suggested that the plaintiff be referred to a drug and alcohol service. To the date of the hearing this recommendation had not been pursued.
Assessment
I concluded from this evidence that the information provided to me by the plaintiff concerning both his physical and mental condition was entirely unreliable.
I found that, as a result of the accident, he suffered an injury to his right foot from which he recovered within a matter of months. I did not accept that the sterno-clavicular joint was damaged in the accident. I accepted that there was a possibility that a pre-existing condition affecting this joint was aggravated for a short period after the accident.
It was apparent that the plaintiff’s evidence was unreliable by reason of the serious state of his mental health. I was persuaded by the material provided by Dr. Knox that the accident triggered a reaction in a person who was already in a precarious state of mental health and that his condition was aggravated as a result of the accident. I did not accept that his mental illness was caused by the accident and I did not accept that consequences of the aggravation resulted in the situation in which the plaintiff now finds himself where he is unemployable.
I concluded therefore, that, had I found in favour of the plaintiff on the issue of liability, I would have assessed his general damages in the sum of $55,000.
In dealing with the plaintiff’s claim of loss of income earning capacity, I considered that the evidence was also unreliable. There was inconsistency between the plaintiff and his mother concerning his proposed application to join the Royal Australian Navy. I considered that in any event that his prospects of securing admission to the Navy were minimal, having regard to the precarious state of his mental health that Dr. Knox reported. There was also inconsistency between the plaintiff and his mother concerning the question of whether he received income while he worked in his mother’s motel.
I was not satisfied that the accident had any significant effect on the plaintiff’s income earning capacity and I allowed only a small buffer in respect of past and future income loss. The sum allowed inclusive of superannuation was $50,000.
The defendant accepted liability for out of pocket expenses to the extent of $6,164.10. It disputed the claim made by the plaintiff for an additional $3,953.90. This claim was based upon the schedule to the plaintiff’s statement of particulars. Having reviewed that schedule, I was not satisfied that all of those expenses related to the need for treatment resulting from the accident. I accepted that the accident contributed to the requirement to meet some of those expenses and I therefore allowed a further $2,000. I was not satisfied that there was a need for any future treatment arising from the accident.
The plaintiff claimed for past and future domestic care. There was little evidence to support this claim, except for the period immediately after the accident when it was necessary for the plaintiff to use crutches for ambulation. Whilst the plaintiff’s psychiatric condition might generate a need for assistance, I was not satisfied that the evidence established that he was in fact receiving assistance on a voluntary care basis. I allowed $1,000 for past domestic care.
The plaintiff also claimed for the cost of replacing his bicycle and his cycling shoes. I considered that there was insufficient evidence upon which I could conclude that the plaintiff’s bicycle was damaged beyond repair. There was no evidence concerning the condition of his shoes after the accident. In respect of the bicycle I would have required more cogent expert evidence concerning the make and age of the bicycle and its replacement value at the time of the accident. In the circumstances, I assessed no amount for damages in respect of the alleged requirement to replace the bicycle and the shoes.
Orders
Verdict for the defendant.
The plaintiff is to pay the defendant’s costs as agreed or assessed.
The exhibits are returned.
My reasons are published.
I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Sidis.
Associate: James Middleton
Date: 3 August 2012
Counsel for the Applicant: Mr Richards
Solicitor for the Applicant: Blumers Personal Injury Lawyers
Counsel for the Respondent: Mr Muller
Solicitor for the Respondent: ACT Government Solicitor
Date of hearing: 1-2 August 2012
Date of judgment: 3 August 2012
0
1
1