Lappan v Seetoo

[2010] NSWDC 134

CITATION:	Lappan v Seetoo [2010] NSWDC 134
HEARING DATE(S):	10, 11 and 12 May 2010
JUDGMENT DATE:	20 May 2010
JURISDICTION:	Civil jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	1. Judgment for the defendant. 2. The plaintiff is to pay the defendant’s costs, on the ordinary basis. 3. Leave to apply within 14 days for some other costs order.
CATCHWORDS:	MOTOR ACCIDENT - claim in negligence by a pedestrian against the driver of a motor vehicle - whether defendant’s car collided with the plaintiff causing him to fall - whether the driver was negligent and if so, whether there was contributory negligence - DAMAGES - causation as between incident and pre-existing back conditions
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Workers Compensation Act 1987 Civil Liability Act 2002
CASES CITED:	Tarabay v Leite [2008] NSWCA 259
PARTIES:	Michael Lappan (Plaintiff) Catherine Seetoo (Defendant)
FILE NUMBER(S):	09/334855
COUNSEL:	Mr R Goodridge (Plaintiff) Mr D Toomey (Defendant)
SOLICITORS:	Firths (Plaintiff) McLachlan Chilton (Defendant)

REASONS FOR JUDGMENT

The proceedings and the issues

1. The plaintiff, Michael Lappan, alleges that on 1 May 2006 he was a pedestrian crossing a street when a car driven by the defendant collided with him, causing him to lose his balance and fall, resulting in injuries, in particular an injury to his back. He alleges negligence and seeks compensatory damages.

2. The defendant denies that her car collided with the plaintiff and denies that his fall was caused by her, as a result of any negligence or at all.

3. The principal issues for determination in relation to liability are:

· Did the defendant’s car collide with the plaintiff?
· Was the defendant negligent?
· Was the plaintiff guilty of contributory negligence?
· If so, by what proportion should any damages be reduced?

The plaintiff’s case

4. The incident occurred at about 6.45 pm on the evening of 1 May 2006 on Ormonde Parade outside the Hurstville Railway Station. It was dark. There were three lanes. The lane closest to the station was a bus lane. The middle lane was a one-way traffic lane. The third lane was a parking lane. The defendant had stopped her car in the bus lane where she had picked up her daughter, and was preparing to move out of that lane into the centre one-way traffic lane. The plaintiff was crossing Ormonde Parade from the other side towards the station entrance. There was no pedestrian crossing at that point, the nearest crossing being some 50m away.

5. The plaintiff gave evidence to the effect that he was three-quarters of the way across Ormonde Parade when the defendant’s car collided with him, in the bus lane, as it started to pull out from the kerb. He said he was bumped by the car on the left side of his body, down around the knee area, lost his balance and fell to the ground. When cross-examined he said he was hobbling across the street, at a slight angle, due to pain in his back and right leg from an earlier incident. He had in fact just been to the physiotherapist. He noticed the defendant’s car when it started to move off slowly from a stationary position. The car then stopped, suddenly, but he was “tipped” by the bumper bar in the knee and thigh area, and he lost his balance and fell.

The defendant’s case

6. The defendant gave evidence to the effect that she went to the railway station to collect her daughter, and stopped in the bus lane while her daughter got in. She started to move forward to the right, with a view to moving out of the bus lane into the one-way traffic lane, when she saw the plaintiff. She stopped and waited till he had passed through. She then looked behind to her right for any traffic. She looked back to the front, lifted the brake, and started moving forward.

7. The defendant said that as she was moving forward for the second time, she saw the plaintiff in front near the passenger side headlight of her car. She again applied the brakes and stopped. She said she only saw his back. When she stopped, he turned around and looked at her for a couple of seconds and then fell over onto the ground. She was shown her statement to the police. She then said that the plaintiff in fact fell into her car, and then to the ground. In cross-examination, when asked whether her car had hit the plaintiff before he fell, she said she was unable to see whether the car had come into contact with him or not, as she was inside the car.

8. The police arrived. A statement was taken from the defendant that is in evidence (Exhibit F). The relevant parts read:

“ Q. Can you tell me what happened?
A. I was picking up my daughter from Hurstville train station. I stopped in the bus lane and my daughter got in. As I was about to go forward I noticed a man walking from the right side of the road across the road in front of me. I drove off very slowly about 5 km/h. The man was walking across the road very slowly. I continued to drive down the bus lane looking to merge into the road. As the man was just about off the road onto the left side he appeared to stop in front of me. I hit the brakes and the man fell into the front left corner of my car.

Q. How fast were you travelling?
A. Less than 5 km/h.

Q. Did you hit the man when your car was moving?
A. I’m not sure. He seemed to move into my car and slam his hands on my car. He then rolled off.”

9. The defendant also gave a statement to an insurance investigator some 15 weeks later on 22 August 2006 (Exhibit 2). The relevant parts read:

“ 8. I drove up to the train station…into Ormonde Street and then there was a gap between cars and so I stopped there…

9. My daughter was waiting there… She opened the door and got in the passengers’ seat. Then I put the blinker on to come out into the drive lane. I had just turned my wheel to the right then I saw a guy in front of me from my right side.

10. He was walking across the road. So when I saw this person cross the road I pressed the brake and stoped the car. So I just waiting for this guy to pass. So by the meantime I just turn back to see if there is any car coming from my back. Automatically I think this guy has already passed through. So I turned my head back and I didn’t see him there and then I just lift the brake and started moving. I just lift a little bit and then I saw to me left side this guy still there. Then I quickly pressed again so the car only maybe moved a couple of centimetres. I just lift my foot off the brake and then press straight down. So the car was not moving much, it just rocked forward.

11. The guy turned around. I don’t even think the car hit him. He turned around and the hands went on my car. And when the police came they clearly see his finger prints on the car. Then he look at inside the car and then fall down.”

10. The defendant’s daughter, Joyce Seetoo gave evidence. She said her mother’s car stopped to collect her in the bus lane outside the railway station at Hurstville in Ormonde Parade and she got into the front passenger seat. She first noticed the plaintiff crossing the street from the right towards the station on the left. Her mother took her foot off the brake, but immediately put the brake back on and stopped when she saw the plaintiff had not reached the footpath and was still in front of the car. She said that at the time the car stopped the plaintiff was at the left front of the car about an arm’s length away. The plaintiff then turned left and faced the car, put his left arm onto the car, and after one or two seconds he fell to the ground. In cross-examination Miss Seetoo conceded she did not keep her eyes on the plaintiff after she first saw him, and was talking to her mother, but firmly rejected the proposition that her evidence about the plaintiff being an arm’s length away when he fell was not correct.

11. Miss Seetoo gave a statement to the police on 9 June 2006 that is in evidence (Exhibit N). The relevant parts read:

“ 4. As I got into the car, my mother was parked outside the train station in the bus zone, I noticed a male walking across Ormonde Pde from my right. There was a bus parked in front of us about 6 metres away. My mother was waiting for the male to cross the road in front of us.

5. As the male got to the far left corner of the car my mother started to move forward slowly. The male was walking very slowly. The male appeared to stop and fall onto the front of the car as my mother started to move forward. My mother stopped the car at the same time the male fell onto the front left of the bonnet. I did not think my mother’s car hit the male but the male appeared to stop and face the car. He then fell onto the bonnet.”

12. Miss Seetoo also gave a statement to an insurance investigator some 15 weeks later on 22 August 2006 (Exhibit 2). The relevant parts read:

“ 4. I walked up and hopped in the car. Mum looked to her right to see if there were any cars coming and then a man basically crossed the road and walked in front of her. He got to the left front light of the car and by then she had assumed that he had already gotten to the footpath and so she released the brake, checked again that the man had gone to the footpath but he hadn’t. Soshe braked. The car jolted. It moved forward maybe like a few centimetres. That man had stopped and turned, facing us. He grabbed onto the bonnet and then fell.”

13. The defendant also called two independent witnesses who were present at the scene and saw the incident, to give evidence. Mr O’Sullivan had parked in the third lane, the parking lane, across from the scene of the incident, and was waiting to pick up a friend, Mr Cullens. Mr Cullens was moving from the footpath into the bus lane.

14. Mr O’Sullivan gave evidence that when he saw his friend, Mr Cullens, approaching from the station he got out of his car and called out to him. As he was standing there he saw the plaintiff walking in front of the defendant’s car, as it was moving out. The defendant stopped her car. The plaintiff fell over at a point just past the headlight on the driver’s side. He said the car did not collide with the plaintiff who was in fact half a metre apart from it. He went over to assist and heard his friend, Mr Cullens, say to the plaintiff, who was lying on the ground, “Come on, mate. Get up. She didn’t even hit you.”

15. Mr O’Sullivan gave a statement to the police on 3 May 2006 that is in evidence (Exhibit M). The relevant parts read:

“ 3. About 6.45pm on Monday the 1st of May 2006, I was parked sitting in my vehicle in Ormonde Pde Hurstville. I was parked on the southern side facing east. I was about 30 to 40 metres past the intersection of Ormonde Pde and Butler Road.
4. I was looking north across the road as I was looking for my friend Chris who was coming out of the train station. I noticed Chris on the northern side walking east. At the same time I noticed a grey car just in front of Chris. This car started to slowly move forward.

5. At the same time I noticed a male walking across the road in a northerly direction in front of the grey car.

6. I saw the male person stop in front of the grey car. He twisted his body to face the car. The car stopped. The male person then placed his hands on the front left side of the bonnet and guard of the car. He then fell in a backwards direction and layed in front of the car.

7. I had a clear unobstructed view of the incident. I was about 12 to 15 metres from the grey car. I was about 2 metres behind the front of the grey car.

8. I got out of my car and walked over to the man. He was moaning and laying on his side. He had one hand on the front of the car.

9. The female Asian driver was out of the car. My mate Chris said to the man ‘come on mate, she didn’t even hit you’. The man looked up and said ‘I have two slipped disks, I have just come out of the physio’.”

16. The second independent witness called for the defendant was Mr Cullens. He said he was in the process of crossing over Ormonde Parade to Mr O’Sullivan’s side and was looking over his shoulder for a clear passage between the traffic. He observed the plaintiff coming across the road in his direction when he appeared to collapse in the centre of the road, near the front right corner of the defendant’s car, some 1 - 3 metres from the car. He approached the plaintiff, who was lying on the ground yelling and screaming about back problems and pain. He said, “What’s the matter?”. The plaintiff replied, “My back”. Mr Cullens then said something like, “You can get up, surely”. In cross-examination, Mr Cullens said the collapse occurred in the one-way traffic lane, not the bus lane. He also maintained that Mr O’Sullivan’s car was parked some 15 metres forward of the defendant’s car. He said there was no contact, of any sort, between the plaintiff and the defendant’s car.

Did the defendant’s car collide with the plaintiff?

17. The first and principal factual issue for determination is whether the defendant’s car collided into the plaintiff, as alleged in paragraph 2 of the Statement of Claim, and by the plaintiff in evidence.

18. The plaintiff’s case is that he was “tipped” in the left knee and thigh area by the bumper bar of the defendant’s car while it was still moving forward, so that he lost his balance and fell to the ground. He disavowed any other contact with the car. This is inconsistent with other evidence, in particular that of both the defendant and her daughter to the effect that he fell into or onto the car.

19. The plaintiff’s case is that the defendant’s car “tipped” him while it was still moving, and this caused him to lose his balance and fall. This is inconsistent with the evidence of Miss Seetoo and the two independent witnesses.

20. The plaintiff’s case is that he was “tipped” by the defendant’s car on his side while he was moving forward towards the kerb, albeit slowly and on a slight angle. This is inconsistent with the evidence of Mr O’Sullivan, who said he stopped, and with the defendant and Miss Seetoo, who said he stopped and turned before falling.

21. It was submitted that the court should reject the evidence of these various witnesses and prefer the plaintiff’s version of the incident. Firstly, counsel asked, rhetorically, why would this plaintiff “fake” an accident when he was already on workers’ compensation as a result of a prior injury. Indeed, he had just come from the physiotherapist. Secondly, counsel pointed to the accounts of the defendant and Miss Seetoo and asked the court to make a finding that the plaintiff fell at or near the left front corner of the defendant’s car, contrary to the evidence of the two independent witnesses. Thirdly, counsel pointed to the statement of Miss Seetoo to the police to the effect that the plaintiff fell as her mother started to move forward, and that she stopped at the same time as he fell, as indicative of a collision having occurred.

22. It was further submitted that the evidence of the defence witnesses contained a number of inconsistencies and discrepancies, making it unreliable. These included the position of Mr O’Sullivan’s car; the point at which it was said the plaintiff fell or collapsed relative to the defendant’s car; whether there was a bus in front of the defendant’s car; whether the plaintiff came into contact with the defendant’s car at all; and, whether Mr O’Sullivan had emerged from his car at all. In particular, it was submitted I should find that Mr O’Sullivan’s car was parked at a point behind the defendant’s car, on the right angle, such that he could not have seen the front of the defendant’s car at the time the plaintiff fell.

23. In my view, these matters were peripheral to the central factual dispute, namely whether the defendant’s car collided with the plaintiff. Both of the independent witnesses were unswerving in their evidence that they had a clear, uninterrupted view of the plaintiff in the moments leading up to the incident, and that the defendant’s car did not collide with him. These were independent witnesses with no stake in the outcome and there was nothing to suggest that they were giving any thing but an honest account as to their memory of the accident. Nor was there anything that would lead me to conclude that they were mistaken.

24. The defendant, to her credit, said she was unable to see whether her car had come into contact with the plaintiff or not, as she was inside the car. But she believed she had not. Her daughter was very clear in her evidence that the plaintiff was an arm’s length away when her mother stopped her car. The two independent witnesses both said the defendant’s car did not collide with the plaintiff. Further, as counsel for the defendant submitted, there was a powerful piece of evidence in the spontaneous words attributed to Mr Cullens directed to the plaintiff on the ground, to the effect, “Come on, mate. Get up. She didn’t even hit you.” In my view, this was a contemporary indicator of the truth of what actually occurred.

25. There were aspects of the plaintiff’s evidence that were indicative of him giving less than frank evidence. Counsel for the defendant pointed to the inconsistency between his evidence and histories given to doctors about the incident. The account given by him to doctors did not involve him being “tipped”. Rather, he attempted to convey that he was struck rather more forcefully. There is also his criminal history indicative of dishonesty. But the more telling indicator of his unreliability as a witness was his refusal to concede back problems of some significance prior to 2006, in particular in 2003, in the face of overwhelming evidence to the contrary.

26. Having regard to all these considerations, I have little difficulty in coming to the conclusion that the plaintiff’s evidence, where contested, was only to be accepted if supported by other plausible supporting evidence. His version of the events on 1 May 2006 in Ormonde Parade was unsupported. I prefer the evidence of the defendant and her witnesses to the evidence of the plaintiff. I find, therefore, that the defendant’s car did not collide with the plaintiff. I find further that the defendant’s car had stopped before there was any contact between the car and the plaintiff. Nor am I satisfied that anything the defendant did, in the manner in which she drove or conducted her car, contributed in any way to the plaintiff’s fall, or collapse.

27. It follows that any injury suffered by the plaintiff in the incident was not caused by the defendant driver. Even if it were to be concluded to the contrary, the defendant’s conduct of her car was in my view appropriately careful, and inconsistent with any breach of her duty as a driver to the plaintiff as a pedestrian. There will, therefore, be a verdict for the defendant.

Contributory negligence

28. It is not necessary to determine the issue of contributory negligence. However, if the incident had occurred in the way the plaintiff said it did, I would have found the plaintiff guilty of a substantial degree of contributory negligence. First, he was crossing a busy road other than at a designated crossing. This was compounded by the slow and hobbling way in which he crossed the road. I am also satisfied, having regard to the evidence that before falling he turned to look towards the defendant, that the plaintiff failed to keep a proper lookout, knowing the defendant’s car had pulled out from the kerb and was moving forward as he was crossing in front of it. This was not the conduct of a reasonable person in the position of the plaintiff:
s 5R of the Civil Liability Act 2002.

29. The question then becomes, to what extent is it just and equitable that the plaintiff’s damages be reduced having regard to the degree to which his negligence contributed to his injuries: s 138 of the Motor Accidents Compensation Act (“the MAC Act”). In considering this issue I take into account both the relative culpability of the parties and the relative importance of the acts of the parties in causing any injury the plaintiff may have suffered: Tarabay v Leite [2008] NSWCA 259 at [29]. In my opinion, the appropriate reduction, assuming the defendant’s car actually struck the plaintiff so as to cause him to fall, would be 50%.

Assessment of damages

30. Notwithstanding the findings I have made on liability I am required to give my assessment of the damages I would award to the plaintiff in the event of a verdict in his favour. Any damages to be awarded fall to be determined and assessed under Chapter 5 of the MAC Act. The plaintiff claimed damages for out-of-pocket expenses, future medical costs, lost income and reduced earning capacity. He is precluded from recovering any general damages for non-economic loss, the requisite threshold for an award of such damages not having been satisfied: s 131 of the MAC Act. A claim for domestic assistance rendered in the past and required in the future was abandoned.

31. The plaintiff was born on 17 April 1982 and is now 28 years old. At the time of the incident he was 24. He grew up in Sydney, attending schools in the Kogarah area until Year 10. Thereafter he was employed from time to time in a number of different jobs. His work history was, however, “patchy”, and he was unemployed for various periods, including one period of 16 months. He spent 6 months at TAFE where he obtained a First Aid Certificate. It was common ground that the plaintiff’s prior work history was adversely affected by drug abuse, and a period of imprisonment for car theft. There was, however, a dispute as to the nature and extent of a pre-existing back conditions, developmental spinal stenosis and disc problems, and their effect on his capacity for work.

32. The assessment of any award of damages is further complicated by another incident that occurred only a month before the incident at Ormonde Parade, when on 7 April 2006 the plaintiff injured his back at work while climbing into a truck.

The medical evidence

33. The plaintiff relies principally on the evidence of Dr W Patrick, a surgeon specialising in musculo-skeletal medicine. Dr Patrick examined the plaintiff but once, over 2 years ago, on 20 December 2007. He provided reports dated 2 January 2008 and 15 January 2008. He also gave oral evidence at the hearing before me. The essence of his opinion was that if the plaintiff was struck and fell, as asserted, then that incident would account for 50% of his ongoing complaints, the other 50% being attributable to the underlying back conditions, combined with the effects of the incident on 7 April 2006. The incident on 1 May 2006 rendered a previously asymptomatic back to one involving permanent and ongoing problems. The incident on 7 April 2006 was more likely to have only resulted in temporary symptomatology.

34. The defendant tendered reports from various specialist medical practitioners: Dr Ryan, Dr Harvey-Sutton and Dr Slezak, to which I will refer shortly. But some of the more telling pieces of medical evidence came from the plaintiff’s treating general practitioner, Dr Howe, whose notes substantiated the serious back problems the plaintiff suffered in 2003, including the fact that the plaintiff underwent a CT, and that he lost his job because of these problems. That 2003 CT scan revealed not only the congenitally short pedicles in the plaintiff’s lumbo-sacral spine, contributing to the developmental spinal stenosis, but also a broadbased annular bulge at the L3-4 level, a disc protrusion at the L4-5 level, and a broadbased annular bulge at the L5-S1 level, which, there could be no doubt, were disabling. A subsequent CT scan in 2006 revealed what in my view on the balance of probabilities was a deteriorated picture, involving a disc protrusion at the L5-S1 level.

35. The shared view of the defendant’s medical experts is that the plaintiff suffered a temporary aggravation of pre-existing lumbar problems resulting in symptomatology that would have resolved within months of the incident on 1 May 2006.

36. In determining which of the competing views as to causation is to be preferred, I take into account the fact that Dr Patrick was limited in formulating a considered view because he only saw the plaintiff once, so long ago; and the unreliability of the history given to him as to the mechanics of the incident on 1 May 2006 by the plaintiff. It is also clear that Dr Patrick was not aware of the full nature and extent of the problems suffered by the plaintiff in 2003. More importantly, his attribution of only 50% of the plaintiff’s continuing complaints to the pre-existing conditions and the 7 April 2006 incident lacks a reasoned analysis. I was not satisfied that Dr Patrick was giving objective evidence when he attempted to differentiate between the mechanics of the two incidents. It was evident that he had in his mind a rather more dramatic incident on 1 May 2006 than the evidence established, including a “severe jolting”. His attempts to construct assumptions as to the nature of the plaintiff’s fall to support his 50/50 apportionment were not convincing. His opinion is further undermined by the concession he made in cross-examination that absent the incident on 1 May 2006, he would nevertheless have attributed the plaintiff’s ongoing symptoms to the pre-existing back conditions and the 7 April 2006 incident.

37. For these reasons I do not accept the evidence of Dr Patrick, and I prefer the unchallenged evidence of the experts called on behalf of the defendant.

38. I find, therefore, that more probably than not the plaintiff suffered a temporary aggravation of a pre-existing back condition in the incident on 1 May 2006 that resulted in symptoms of a few months duration. Any subsequent problems and symptomatology are a result of the pre-existing problems including the developmental condition and the incident of 7 April 2006.

39. Turning to the plaintiff’s left knee, the evidence does not support any causal relationship between any problems in that knee and the incident on 1 May 2006. Even Dr Patrick conceded that the laxity evident in that knee was due to a pre-existing condition.

40. In the light of these findings I turn to consider the specific heads of damages claimed.

Medical and related expenses

41. The plaintiff claims past out-of-pocket expenses totalling $15,182.53. The arithmetic was agreed, but the defendant contended that these costs cannot be attributed to the incident on 1 May 2006. In view of the findings I have made, it cannot be concluded that any of the treatment claimed was required by reason of that incident.

42. Turning to the future, the findings I have made would preclude an award of damages for future medical and related expenses.

Economic loss

43. The next head of damages for which the plaintiff claims is for past economic loss. In the light of the findings I have made, no past economic loss has been proved. But in any event, the problem for the plaintiff is that he obtained employment subsequent to 1 May 2006 at a rate of pay in excess of his nett weekly earnings prior to that date. Having regard to his patchy work history, his drug use, his pre-existing back problems and his period of imprisonment, any past economic loss could only amount to a minimal sum even if his incapacity due to the 1 May incident had lasted beyond a few months.
44. Turning to the future, my findings are such that the incident on 1 May 2006 played no part in any reduction of the plaintiff’s earning capacity.

The defence under s 151Z(3) of the Workers Compensation Act 1987

45. It follows that the plaintiff has no entitlement to an award of damages. But if he did, the defendant has a defence under s 151Z(3) of the Workers Compensation Act 1987 that I find proved in the sum of $6,789.76.

Costs
46. Costs follow the event and are payable on the ordinary basis, unless some other order is appropriate. There is nothing before me, at this point, to indicate that some other order is appropriate but I will reserve leave to either party to apply in that regard.

Disposition

47. There will, therefore, be a verdict for the defendant.

48. I direct the entry of judgment for the defendant.

49. I order the plaintiff to pay the defendant’s costs, on the ordinary basis.

50. I give leave to the parties to apply for some other costs order provided any such application is notified to the other party and the court within 14 days, in writing, specifying the order sought.