Kibble v Smith

[1999] QSC 186

IN THE SUPREME COURT

OF QUEENSLAND

No. 1756 of 1998

Brisbane

Before             Williams J

[Kibble v Smith & Anor]

BETWEEN:

BRANT LACHLAN KIBBLE

Plaintiff
AND:

MICHAEL COLIN SMITH

Defendant

AND:

FAI GENERAL INSURANCE COMPANY LIMITED

Defendant by Election

CATCHWORDS:     Negligence - collision between motor cycle and car at T-intersection - unusual layout of intersection - give-way sign fronting motor cycle - motor vehicle travelling at speed slightly on incorrect side of the road - liability apportioned - plaintiff _ contributory negligent.

Damages - future economic loss - loss of chance to earn income as qualified civil engineer.

Counsel:Zillman for plaintiff.

Munro for defendant by election.

Solicitors:Richard Hoare & Co for plaintiff.

Clayton Utz for defendant by election.

Hearing Dates:  19-20 July 1999.

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered 12th day of August 1999

1.  The plaintiff sustained reasonably severe personal injuries when the motor cycle he was riding and the defendant’s motor vehicle collided at about 8 a.m. on 6 June 1992.  At the outset of the hearing the court was informed that there had been substantial agreement on items of quantum; the following were agreed:

General Damages  $50,000.00

With interest at 2% p.a. on $25,000 from 6 June 1992 

Damages under the Griffiths v Kerkemeyer head:
For services rendered by the plaintiff’s father and brother         $  2,238.50
With interest at 2% p.a. from 6 June 1992

Past economic loss (20 weeks @ $145)  $  2,900.00
(Rate of interest not agreed)

Special damages   $26,082.50

Interest on $382 of the amount of special damages

@ 5% p.a. from 6 June 1992

That left the issue of liability, and also the assessment of future economic loss, to be resolved by the court.

2.  As at the date of the accident the plaintiff was aged 19 and he was a reasonably experienced motor cycle rider.  At the time he was riding what was described as a 1949 vintage Matchless bike.  The defendant Smith was aged approximately 22 as at the date of the accident and had held a licence to drive for about 3 to 4 years.  He only acquired the vehicle he was driving the day before the accident; it was the Holden Gemini sedan depicted in the photographs exhibit 18.

3.  The collision occurred at the T-intersection of Stapylton-Jacobs Well Road and Stanmore Road, Yatala.  In broad terms the plaintiff approached the intersection travelling in a north-easterly direction in Stanmore Road and intended to turn right, whilst the defendant was driving in a westerly direction on Stapylton-Jacobs Well Road and intended travelling directly through the intersection which would have taken him on to the on-ramp for the Pacific Highway (the north bound lanes towards Brisbane). 

4.  The approaches to the intersection and the traffic island  there are rather difficult to fully and accurately describe in words, but photographs taken shortly after the accident fairly depict the scene.  (It should be noted that the scene had completely changed by the date of trial; also, the road sign most clearly depicted in photo 3 of exhibit 22 was not there as at the date of the incident).  The plan (exhibit 15) drawn by the plaintiff, who was then a cadet draftsman for an engineering firm, and the Cardno & Davies Plan (exhibit 22) also assist in understanding the nature of the roads in question and the intersection.

5.  All I will attempt to do is to describe some of the features thereof which are of particular relevance to the issue of liability.  As the defendant approached the intersection he travelled under a bridge which carried the four lanes of the Pacific Highway. I accept the evidence of the plaintiff and the police officer (Cook) that the relevant speed limit was 60 kmph.  However, as the defendant passed under the Highway, that is some 100m from the point of collision, there was an advisory speed sign showing 40 kmph.  I find, in accordance with the defendant’s evidence, that as he passed under the Highway he was travelling at about 80 kmph.

6.  The road on which the defendant was travelling is divided by double centre white lines from where it passes under the Highway to a point near the intersection; I will deal in more detail with where those lines end in a moment.  Immediately after the intersection the road on which the defendant was travelling becomes a one-way road (or ramp as it was termed) feeding on to the north bound Pacific Highway.  There is no centre line marking on the one-way section of that road, and it is narrower than the roadway as it approaches the intersection.

7.  There is an irregular shaped traffic island at the intersection.  It is virtually impossible to describe its shape simply in words; it is depicted in the various plans and photographs admitted into evidence.  The traffic island defines an exit carriageway for vehicles travelling in the direction in which the defendant was and intending to turn left into Stanmore Road.  The Stapylton-Jacobs Well Road curves to the right at the point of the intersection.  That, combined with the curved alignment of the traffic island at the mouth of Stanmore Road makes it impossible to speak in terms of definite angles as between the two roads and vehicles approaching on them.  There is a Give Way sign facing vehicles travelling in the direction of the plaintiff, and a  broken white stop line across the mouth of Stanmore Road aligned with it.  At that point the centre white lines in Stapylton-Jacobs Well Road have ceased, but there is a broken white line marking the left hand edge of the carriageway proper for vehicles travelling as the defendant was. 

8.  The plan, exhibit 15, was prepared by the plaintiff from measurements he took at the scene about a year after the accident; there were then no significant changes to the area.  As already noted he was at that time working as a draftsman and was familiar with the preparation of plans to scale.  His is the only real evidence as to distances and in the circumstances I am prepared to accept and act upon his evidence though his field notes have been lost.  On that basis the curbing of the traffic island would extend for approximately 30m roughly parallel to the Stapylton-Jacobs Well Road carriageway; that appears to be consistent with what is shown in the photographs.

9.  For reasons which will become apparent later it is important to determine where in relation to the traffic island the double centre lines stopped.  It is difficult, if not impossible, to establish that relativity from the photographs.  Because of the angles at which the various photographs were taken and the normal problems associated with establishing distances and relative positions from photographs, a different impression is created depending on which of the photographs in evidence is being considered.  However, from the photographs one can fairly confidently conclude that the double centre line did not extend beyond the point of the traffic island closest to the defendant in his direction of travel.  The plaintiff’s plan has those lines terminating at about that point of the island though the Cardno & Davies Plan suggests those lines ceased some distance back.  I am certain on the evidence that those lines did not extend beyond the point of the traffic island and on the balance of probabilities I find they ceased some short distance back from that point.

10.                  There is conflict between the plaintiff and his father on the one hand, and the defendant on the other, as to the movements of the plaintiff as he travelled through the intersection.  According to the plaintiff and his father, the plaintiff at all relevant times was travelling a short distance in front of his father, who was also riding a motor cycle.  The defendant’s evidence was that the plaintiff’s father arrived at the Give Way sign first, but that he was then overtaken by the plaintiff as the latter travelled through the intersection turning to his right.  Having considered all the evidence I have ultimately come to the conclusion that the evidence of the plaintiff and his father should be accepted on that point.

11.                  I also accept the evidence of the plaintiff and his father that a truck turned left from Stapylton-Jacobs Well Road into Stanmore Road as the plaintiff was approaching the Give Way sign.  The presence of that truck, which the defendant did not recall, may have affected his interpretation of what each of the motor cycles was doing as it approached the intersection.

12.                  I am satisfied that the plaintiff slowed to about 5 kmph as he reached the Give Way sign but never stopped.  I am further satisfied that as he approached the point of the Give Way sign he saw the defendant’s car coming from underneath the Highway bridge.  He assessed that it was travelling at what he called “normal speed”.  The plaintiff believed that he had time to negotiate his right hand turn and proceeded to cross the road.  According to his evidence he had completed his turn and had travelled to within about 30cm of the left hand (northern) edge of the bitumen carriageway (that is virtually right across Stapylton-Jacobs Well Road) when the collision occurred.

13.                  Three facts which were not disputed should now be recorded.  Firstly, all the damage to the defendant’s motor vehicle was to the right front corner; the damage is clearly depicted in the photographs of the vehicle.  Secondly, the damage to the plaintiff’s motor cycle, again as depicted in the photographs, was centred on a point about halfway along its right hand side. Thirdly, the plaintiff was thrown off to the right in the direction of the defendant’s travel and came to rest at the point marked on exhibit 15 beyond the traffic sign depicted in the photographs.  His motor cycle came to rest at the base of that sign.

14.                  As part of the defendant’s version of how the incident occurred he claimed that the plaintiff’s motor cycle stopped when it was about in the middle of the road in the course of making the right hand turn.  That was not put to the plaintiff, and in the circumstances I reject that contention.

15.                  As already noted the defendant admits that he first saw the plaintiff’s motor cycle when he, the defendant, was approximately 100m back from where the incident occurred and he was travelling at approximately 80 kmph.  Two aspects of the defendant’s evidence are then critical on the issue of liability.  He said under cross examination that he first started applying his brakes “between 15 and 10 metres, I’m not sure” before the point of impact; he then agreed with the proposition that he applied his brakes somewhere between 30 and 20 feet before the point of impact.

16.                  He also said that as soon as he saw the plaintiff he “backed off the accelerator” and moved “to the right hand side”.  Though he said on occasions he was “not sure”, he repeatedly in the course of evidence in chief and cross examination referred to his vehicle crossing over the double white lines by 1 or 2 feet as he moved to the right.  Given that evidence the only conclusion I can reach is that quite some distance before the point at which the double centre lines stop the defendant had moved his vehicle some 1 or 2 feet on to its incorrect side of the roadway.  Given the distance he was away from the plaintiff that was an unusual manoeuvre.  If, as must have been obvious, the motor cycle was negotiating a right hand turn there was ample distance within which the defendant could have slowed his vehicle and moved left in order to travel safely behind the motor cycle.  Given that all the damage was to the right hand front corner of the defendant’s vehicle, and the point of impact was at about the middle of the motor cycle, it is highly probable that the motor cyclist had significantly completed the right hand turn before impact.

17.                  Given the absence of evidence as to the precise point of impact on the roadway (I do not give any weight to the evidence of the plaintiff’s father as to an oil-water mark on the roadway) there is no objective evidence supporting the plaintiff’s contention that he had completed his turn, fully straightened up, and travelled some distance before impact.  But considering all of the matters that have been discussed above, I am satisfied that the point of impact was at least to some extent on the defendant’s incorrect side of the carriageway, that the plaintiff had significantly completed his turn, and that impact occurred some short distance towards the highway bridge from where the plaintiff entered upon Stapylton-Jacobs Well Road.

18.                  Given those findings, given that the defendant’s speed until shortly before the impact had been of the order of 80 kmph, and given that he did not apply his brakes until some 10 to 15m prior to the point of impact, I am satisfied that the defendant must bear the greater percentage of blame for the accident.

19.                  However, I am also satisfied that the plaintiff was negligent.  The intersection was an unusual one and he was faced with a Give Way sign.  If he had stopped at the mouth of the intersection, rather than proceeding through at slow pace, it is more likely he would have appreciated that the oncoming car was travelling at greater than “normal speed” and that a situation of possible danger existed.  Given the curves in the roads to which I have referred previously, it was difficult for motor cyclist in the position of the plaintiff to ascertain quickly whether the oncoming vehicle was travelling to any extent on its incorrect side of the roadway.  In the circumstances a prudent motor cyclist would have halted at the Give Way sign and assessed the risk posed by the oncoming vehicle more carefully before proceeding to make the right hand turn.

20.                  In all of the circumstances outlined I apportion liability two-thirds against the defendant, one-third against the plaintiff.

21.                  In order to assess future economic loss it is necessary to say something about the injuries sustained by the plaintiff.  He sustained a compound fracture of the right tibia, a fracture of the right femur with an associated injury to the right popliteal artery, and multiple fractures to the right foot.  Reports from four orthopaedic specialists were admitted into evidence; three assessed the permanent disability as of the order of 25%, while the other was of the view it was as high as 40%.  Essentially the disability affects the plaintiff’s capacity to run, squat, kneel, and negotiate stairs.  In addition there is some significant permanent scarring.

22.                  The plaintiff completed his secondary schooling in 1990, attaining a T.E. score of 890.  He commenced work with John Wilson & Partners as a cadet draftsman early in 1990.  In that year he also commenced studies at Queensland University of Technology for an Associate Diploma in Civil Engineering.  As at the date of the accident he was earning $145 per week nett and coping extremely well with both his studies and his work.

23.                  I am satisfied that between leaving school and the accident the plaintiff at all times had an ambition to complete a Bachelor of Civil Engineering course.  One of its attractions to him was that it opened opportunities for work overseas.  He commenced the Diploma Course primarily because it was preferred by his employer.  The degree course took 3½ years to complete full-time and 4½ years part-time.

24.                  After the accident the plaintiff was in hospital for two months, and spent a further three months convalescing at home before he was able to return to work part time.  When he returned to work with John Wilson & Partners he found that he had difficulty coping with standing at the drafting board.  A little over twelve months after returning to work he left John Wilson & Partners in order to obtain employment that he could cope with more readily.  In November 1993 he obtained employment with G.H.& D. where most of the drafting was computer aided.  He was able to sit for lengthy periods and that eased the stress on his leg.  But after about four months he found that he could not cope sitting all day; again that was due to pain and discomfort from his leg.

25.                  On leaving G.H.& D. the plaintiff underwent surgery to have various pins removed from his leg and after recuperation he commenced employment with his father.  By this time he had come to the conclusion that he would not be able to cope with a degree course at University.  The pain and discomfort from his leg affected his concentration, and he also realised that he would be unable to cope with the physical demands of working as a civil engineer.

26.                  In 1994 he was awarded the Associate Diploma with distinction.  Graduation was not delayed in any way by the accident and its aftermath.

27.                  In about May 1994 he began working for his father.  Tom Kibble Plan Printing was a business which supplied engineers and architects with drafting materials and the like.  It also provided copies of plans.  The business had been in existence since 1972 and was at material times formally conducted by the Kibble Family Trust.  As at the date of trial the plaintiff’s father, the plaintiff, and one young woman were full time employees, and there were two part time employees, a family relative and another young woman.  The business had always been successful and there was no reason to doubt its viability in the immediate future.

28.                  The plaintiff was generally employed as a salesman, though he did perform other tasks within the business.  His regular salary was of the order of $450 per week gross, $364 per week net.  But in addition to that he received a profit distribution from the Trust at the end of each year.  The reality is that as a beneficiary of the Trust he probably would have received that amount whether or not he was employed by the business.  Given the plaintiff’s disabilities there is every prospect that he will succeed his father (who at trial was aged 60) as the effective owner of the business and that it will return him a comfortable salary for the rest of his life.  Undoubtedly the fact that he has worked as a draftsman and has tertiary qualifications in the field would ensure that he kept the business abreast of new technological developments.

29.                  Given all of the plaintiff’s background it has to be said that even before the accident there was at least a real possibility that he would have succeeded his father as the effective owner of the family business.

30.                  The plaintiff tendered a report from accountants (exhibit 13) purporting to show what he could have earned as a qualified civil engineer working as such and contrasting that with earnings from his current employment.  The arithmetical difference cannot, in all the circumstances, be taken to be the measure of the plaintiff’s future economic loss.

31.                  There was no certainty the plaintiff would have completed a degree in civil engineering, there is at least uncertainty as to when and where he would have worked as a civil engineer and what his earnings would have been, and there is (as noted above) the distinct possibility that in any event after a period of time he would have taken over the family business.  I accept that his current physical disabilities would effectively prevent him from working on site as a civil engineer.

32.                  In 1992 the plaintiff had ambitions to complete the degree course and had the academic capacity to do so but I am not prepared to find that but for the accident he would definitely have undertaken and completed the course.

33.                  It follows that the measure of his future economic loss is really the loss of a chance to earn income as a civil engineer.

34.                  At best for the plaintiff on the accountants’ evidence he lost the chance of qualifying and working as a civil engineer possibly earning over his life time (including superannuation) something of the order of $230,000 more than he might earn from the family business.

35.                  The plaintiff was an intelligent young man at the time of the accident, but in his case there was always the risk that he may not, for a variety of reasons, have fulfilled his ambitions.  He had had one motor cycle accident (in 1991) prior to the one in question here, and on two subsequent occasions whilst riding a motor cycle on a racing track has fallen and sustained broken collar bones.  That demonstrates that the court must have regard to significant discounting factors in assessing the value of the plaintiff’s lost chance.

36.                  In all the circumstances I assess the chance at about 40%.  In the circumstances I will allow $95,000 for future economic loss.

37.                  The parties were not in agreement as to the rate of interest that should be allowed on past economic loss.  In the circumstances I will allow interest thereon at the rate of 6% p.a.

38.                  My award can therefore be summarised as follows:

(i)General damages  $ 50,000.00

(ii)Interest thereon  $   3,565.00

(iii)Griffiths v Kerkemeyer damages                  $   2,238.50

(iv)Interest thereon  $     319.00

(v)Past economic loss  $   2,900.00   

(vi)Interest thereon  $   1,240.00

(vii)Special damages  $ 26,082.50

(viii)Interest thereon  $     136.00

(ix)Future economic loss  $ 95,000.00

Total  $181,481.00

That has to be reduced by _ for contributory negligence.

39.                  In consequence there will be judgment for the plaintiff for $120,987.