Joughin v Astanei and Motor Accident Commission
[2001] QSC 214
•21 June 2001
SUPREME COURT OF QUEENSLAND
[2001] QSC 214
File No S 817 of 2001
BETWEEN:
TERRY JOUGHIN
Plaintiff
AND:
CONSTANTIN ASTANEI
First Defendant
AND:
MOTOR ACCIDENT COMMISSION
Second Defendant
MOYNIHAN J – REASONS FOR JUDGMENT
DELIVERED ON: | 21 June 2001 |
HEARING DATE/S: | 23-24 May 2001 |
ORDER: | Judgment for the plaintiff against the defendants in the sum of $635,346.25. |
CATCHWORDS: | TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – LIABILITY OF DRIVERS OF VEHICLES – FAILURE TO LOOK OUT – Generally – Where vehicle mover contacted plaintiff’s tilt tray truck causing injury to the plaintiff |
COUNSEL: | S C Williams QC with A G Munt for the plaintiff B L Hoare for the defendants |
SOLICITORS: | McInnes Wilson Lawyers for the plaintiff M P McSweeney & Co for the defendants |
The plaintiff was injured on 15 November 1999. He had driven a tilt tray truck used in the transportation of motor vehicles to a car yard in Lamington Avenue, Eagle Farm. When he came to the entry to the car yard a large vehicle mover, which was 19 metres long, was stationary in the left hand lane on the approach to the gatehouse at some short distance back from it. The plaintiff proceeded into the right hand lane and halted outside the gatehouse. The roadway in the vicinity is wider than normal although there may have been some inhibition by activities associated with boom gate installation and other work. He spoke with the gatekeeper who was standing on the verandah of the gatehouse in the vicinity of one of the two sets of steps giving access to it. The plaintiff was referring to a docket book which he had placed on the steering wheel in front of him and had his left hand resting on the gearshift. After an appreciable time in conversation with the gatekeeper he heard a crunching sound and saw the gatekeeper recoiling. The vehicle carrier mentioned previously had moved off and was executing a right hand turn. In the course of doing so it came into contact with the plaintiff’s vehicle and pushed it sideways lifting it and dropping it back on the ground twice and rocking the cabin. The plaintiff’s passenger Watene, a large well built man, was flung sideways into the plaintiff and the plaintiff was pushed sideways so that his head struck the side window.
It is impossible to reconstruct the mechanisms involved but I am satisfied that the plaintiff was subjected to sufficient force to cause the injury which is the cause of his problems.
The driver of the vehicle mover had left the gatehouse after speaking to the gatekeeper at about the time the plaintiff pulled up there and walked across to his vehicle. He did not see the plaintiff’s vehicle either then or at all prior to his vehicle coming into contact with it. The gatekeeper did not apprehend any danger prior to the vehicle carrier coming into contact with the plaintiff’s vehicle and nor did the plaintiff. I am satisfied the driver of the vehicle mover was negligent. The contributory negligence pleaded against the plaintiff has not been made out.
The plaintiff does not recall feeling pain immediately after the accident although Watene describes him as crying out with pain when they came into contact. The plaintiff was angry at the driver of the vehicle carrier and when he got out of his vehicle he walked to the back of the vehicle to compose himself before coming back to speak to the driver. At this stage he had a feeling of abnormal sensation in the shoulders and the neck but didn’t take too much notice of it.
The drivers observed the formality of exchanging details. The plaintiff disentangled his vehicle from the vehicle carrier further damaging the bull bar. The passenger side door of the plaintiff’s vehicle had been damaged and the side mirror broken. The plaintiff then drove to a smash repair yard to have the bull bar attended to. By this time he was getting pain up through his neck and left shoulder. He went to a police station to report the accident and then to his GP.
It is material to note that the plaintiff’s GP, Dr Hinchy, had examined the plaintiff on 2 November 1999 in order that he might renew his speedway drivers licence. There was no suggestion of abnormality or difficulty about the plaintiff’s left shoulder. On 15 November, Dr Hinchy diagnosed a cervical whiplash ligament/muscle strain to the left shoulder. He prescribed analgesics and anti-inflammatory medication and referred the plaintiff for physiotherapy. He ordered x-rays which were taken on 23 November 1999. They showed a slight narrowing of the C5/C6 disc space but Dr Hinchy could not determine whether this was attributable to the accident or was pre-existing.
The plaintiff attended the physiotherapist for the first time on 17 November 1999 and on six subsequent occasions. His shoulder was manipulated, he had electro and laser therapy, was taped for postural support and stability, prescribed exercise and advised about coping strategies. His cervical spine improved but his left shoulder did not.
Dr Hinchy ordered an ultrasound examination which was reported as normal. The plaintiff continued to have significant disabling pain and was unable to use his left shoulder. Dr Hinchy was “quite alarmed” at his lack of progress and referred him to Dr Duke, an orthopedic specialist, who saw the plaintiff for the first time on 22 March 2000. Dr Duke ordered an MRI scan which indicated the possibility of a SLAP tear as well as the possibility of a rotator cuff tear. An arthroscopic examination by Dr Duke on 13 April 2000 showed an avulsion of the insertion of the biceps tendon and a labral tear anteriorly. Dr Duke stabilized the SLAP tear with an absorbable anchor, inserted two stitches to stabilize the anterior labral tear and debrided and cleaned other tears.
If anything, the surgery made things worse, the plaintiff’s condition continued to deteriorate. Dr Duke described the outcome of the surgical intervention as “not entirely satisfactory”. There is no suggestion that further surgical intervention would be useful.
The plaintiff has a permanent partial disability of his left shoulder estimated by Dr Morris to be of the order of 30 percent. The disability seriously inhibits his capacity to lift and to undertake repetitive tasks involving his left shoulder. He is unable to carry out many activities of daily living and family life, at least without assistance. He is precluded from recreational activities he previously enjoyed, notably competitive driving. He is restricted in the activities he can enjoy with his children. His earning capacity at best is restricted to sedentary occupations, which he is not equipped for by virtue of his education, work experience and interest.
In addition to his physical disabilities, the plaintiff developed an adjustment disorder which has progressed to reactive depression. To put this in context, the plaintiff was born on 30 May 1969. His right hand is his predominant hand. He is married with two young children. He left school after completing Year 10 and worked in various occupations; bricklayers labourer, glazier, air-conditioning unit installer, undertook a warehouse training management course, worked as a storeman and as a night watchman.
In 1990 the plaintiff commenced work as a self-employed truck driver subcontracting to Ready Towing and on 1 July 1995 he and his wife entered into partnership. They purchased a second truck in 1996, employed a driver for that, the plaintiff continuing to operate the first truck. They planned to progress to having a fleet of five trucks which the plaintiff would manage and obtain work for and so allow him to work more sensible hours. His wife was a qualified nurse but was a full time carer for the children. The plaintiff came to see his injury and the consequent disability as “taking away everything (he) had worked for” and he “felt trapped” by his physical limitations. There is no doubt the plaintiff and his family circumstances have changed for the worst as a consequence of the accident. It has adversely affected their lifestyle, put pressure on their finances, including their ability to maintain mortgage payments, and put pressure on the marriage. The plaintiff can no longer operate his business or work as a tow truck driver. His psychological condition is aggravated and will continue to be aggravated by his chronic pain. I should say at this stage that I am satisfied the plaintiff is an essentially truthful and reliable witness. I did not notice any striking discrepancy between the plaintiff’s evidence and the video shown.
The plaintiff developed suicidal ideation and has been much assisted in dealing with his problems by Mr Morgan, a psychologist whose report is in evidence and who gave evidence. The plaintiff needs ongoing treatment from a general practitioner, reference to a specialist psychiatrist (who can be expected to prescribe antidepressant drugs) and regular counseling from a psychologist. The constant reminder by his chronic shoulder pain is likely to prevent his depression from going into full remission. Notwithstanding treatment, suicidal ideation remains an issue and the possible need of hospitalisation needs to be taken into account. All the matters that I have been canvassing are the outcome of the accident of 15 November 1999.
In all probability, subject to the ordinary vicissitudes of life and business had the accident not occurred the plaintiff would have been successful in expanding his fleet of tow trucks and moving from a driver to a managerial role. I think it is unlikely that the plaintiff will return to full-time employment. I take into account that he may have some residual earning capacity although given his disabilities and the other factors I mentioned this is unlikely to be of any practical consequence.
I turn to consider the assessment of the plaintiff’s damages in terms of the conventional headings.
(a) Pain, suffering and loss of amenities.
The combined effect of the plaintiff’s physical impairment, ongoing pain and his psychiatric disability canvassed earlier in my view justifies an award of $75,000 under this head. I apportion $30,000 from the date of the incident to trial and allow interest of $1200.
(b)Earning capacity
In the event there is little to distinguish the approach and outcomes of the forensic accounting exercise relied on by the plaintiff on the one hand and the defendant on the other, that this was so was accepted by counsel. There is some room for debate about growth rate assumptions reflected in the exercises but that is more a matter of judgment than calculation. The parties have agreed that the business contract between the plaintiff and Ready Towing is assignable. Ready Towing has assumed control of the partnership vehicles, pays all the expenses including the policy expenses, and retains the proceeds of the operation of the vehicles
(i) Past economic loss
In addition to foregone earnings the plaintiff has suffered a capital loss calculated at $19,529 consequent on the assignability of the licence and the arrangement with Ready Towing. I am satisfied that the arrangement was the most practical one in the circumstances. I assess the plaintiff’s pre-trial economic loss (capital and earnings) at $41,529 and allow $3,700 interest.
(ii) Loss of earning capacity (future)
The calculations made by the respective forensic accountants vary in accordance with the assumptions that are necessarily made. On the view I take of the matter, the plaintiff’s earning capacity has been substantially destroyed as a consequence of his injuries. As I mentioned earlier the vicissitudes of life and of business have to be taken into account; it is impossible to quantify them but they support a conservative approach. It is submitted that the award for future economic loss include a “global sum” of $150,000 representing “the loss of opportunity to further develop business”. While there may be some basis for arguing the plaintiff may suffer some capital loss in the distant future, the evidence does not provide any reliable basis for assessing it. That aside, the evidence in my view does not found any measure of the plaintiff’s future economic loss other than loss of earnings.
The plaintiff’s forensic accountant, on the basis of a retirement at 65 and the business “as at the date of the accident” calculates $434,252 for future economic loss based on a 2% annual growth rate. Making allowance for the fact that those assumptions may be unduly optimistic and not reflect the vicissitudes and other factors mentioned earlier. I allow $375,000 under this head.
(c)Gratuitous care
(i) Past
The assistance the plaintiff has required on account of his disability, it is largely provided by his wife, is dealt with in exhibit 6 and his need is supported by the assessment of Mr Frazer an occupational therapist. Exhibit 1, pages 77-78 provides a basis for arriving at an average rate. I allow $12,000 and $910 by way of interest.
(ii)Future
I don’t think the plaintiff will necessarily require the level of gratuitous assistance that he has needed in the past but for the foreseeable future he is going to be dependant on others to an appreciable degree. I allow $100,000.
(d)Future care
The plaintiff needs medical, psychiatric and psychological treatment and therapy in the future. I allow $18,800 under this head.
(e)Out of pocket expenses
These are agreed at $6,800.05. Interest (on $5,429.40) is allowed in the amount of $407.20.
Summary:
(a) Pain, suffering and loss of amenities: $75,000.00
Interest: $1,200.00 (b) Past economic loss: $41,529.00 Interest: $3,700.00 (c) Future economic loss: $375,000.00 (d) Past gratuitous care: $12,000.00 Interest: $910.00 (e) Future gratuitous care: $100,000.00 (f) Cost of future care: $18,800.00 (g) Out of pocket expenses: $6,800.05 Interest: $407.20 TOTAL: $635,346.25
I therefore give judgment for the plaintiff against the defendants in the sum of $635,346.25.
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