Lazurko v Nominal Defendant

[1994] QCA 136

IN THE COURT OF APPEAL  [1994] QCA 136

SUPREME COURT OF QUEENSLAND

Appeal No. 205 of 1993.

Brisbane

[Lazurko v. The Nominal Defendant]

BETWEEN:

GEORGE LAZURKO

(Plaintiff)Appellant

AND:

THE NOMINAL DEFENDANT

(Defendant)Respondent

_________________________________________________________________

Macrossan C.J.

Pincus J.A.

McPherson J.A.

_________________________________________________________________

Judgment delivered 11/05/1994

Judgment of the Court

_________________________________________________________________

APPEAL DISMISSED WITH COSTS
_________________________________________________________________

CATCHWORDS:   NEGLIGENCE - DAMAGES - Appellant quadriplegic as a result of overturning his car on David Low Highway - shortly after accident told 2 colleagues at different times that he was dazzled by lights and lost control - some months after accident first made mention of another car coming towards him on wrong side of road, and that he swerved to avoid it, thus overturning his car - judge below did not accept appellant's case - whether basis existed for appeal court to overturn his findings - decision upheld.

Counsel:Mr K C Fleming Q.C. with him Mr P C Munro for the appellant.

Mr J J Clifford Q.C. with him Mr D H Tait for the respondent.

Solicitors:Sly & Weigall for the appellant.

O'Shea Corser & Wadley for the respondent.

Hearing Date: 28 April 1994.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 205 of 1993.

Brisbane

[Lazurko v. The Nominal Defendant]

BeforeMacrossan C.J.

Pincus J.A.

McPherson J.A.

BETWEEN:

GEORGE LAZURKO

(Plaintiff)Appellant

AND:

THE NOMINAL DEFENDANT

(Defendant)Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 11/05/1994

This is an appeal against a judgment of Byrne J dismissing an action for damages for negligence.  The appellant was seriously injured about 11.00 p.m. on 29 April 1984, when driving around or in the vicinity of a left-hand bend in the David Low Highway near Noosa Heads.  For some reason his sedan motor vehicle overturned with the result that the appellant's neck was broken and he became a quadriplegic.

Before Byrne J it was contended that his Honour should find that the cause of the overturning was that an unidentified vehicle travelling in a direction opposite to the appellant's was driven partly on the wrong side of the road, with the result that the appellant had to swerve sharply to his left, causing him to lose control and overturn.  In this Court an additional argument was advanced as an alternative:  that the cause of the overturning was that the headlights of an oncoming vehicle were too bright, causing the appellant to lose control of his sedan.

The arguments advanced concern chiefly questions of credit;  it was said that the primary judge rejected the appellant's account of the accident for reasons which were inadequate.  The principal reason why the appellant was disbelieved appears to have been that, according to the judge's conclusions, the appellant gave a version of the accident shortly after it occurred which was substantially at variance with that put forward in Court.  A secondary reason was that, as the judge thought, the appellant falsely claimed to have been wearing a seat belt at the time of the accident;  the judge found that he was not wearing one then.

The appellant gave evidence that when driving towards his home at Sunshine Beach, the night being wet and windy, he dropped his speed to 50 kph around a bend in the road;  as has been explained, it was a left-hand bend, in accordance with the appellant's direction of travel.  The appellant said that as he approached the bend he saw lights shining in front of him and a car coming towards him.  According to the appellant's evidence, as his vehicle rounded the corner, he noticed that the other car's lights were on the wrong side of the road and were very bright;  the car was "straddling the middle line around the corner and I had to take evasive action".  He swerved to the left to miss the oncoming car whose lights were, he thought, on high beam.  As we understand it, his case was that the swerve caused the overturning which brought about the appellant's injury.

The witnesses to whom, according to the evidence, the appellant explained the circumstances of the accident, shortly after it occurred, were Messrs Hoiberg and Sobey.  Hoiberg, a friend and partner of the appellant, went to see him in hospital in Brisbane on the day after the accident.  Hoiberg told a loss adjuster in March of 1985 that the appellant:

"...told me that he had been driving home from Noosa Australian Football Club when he was dazzled by lights and lost control of his vehicle.  Lazurko told me that other than those two facts he did not know how the mishap had occurred".

Sobey, another partner of the appellant, obtained some details of the accident from the appellant a few days before 17 May 1984;  Sobey did so for the purpose of filling out a motor accident report to be sent to the company which had issued a comprehensive motor vehicle insurance policy on the appellant's vehicle.  In that document, dated 17 May 1984, Sobey wrote the following explanation of how the accident happened:

"The driver is unable to complete this form due to his injuries.  All he recalls clearly is dazzling lights and losing control.  The corner of the accident is notoriously bad even in dry weather.  The night of the accident was wet and drizzling rain no doubt making it more treacherous than usual.  The passenger side rear wheel is blown and could have contributed to the accident.  The bitumen is rather narrow and the road shoulders particularly bad in this section at the accident".

On behalf of the respondent, reliance was placed on the circumstance that this account is consistent with that given by Hoiberg to the loss assessor, in that one says that "All he recalls clearly is dazzling lights and losing control", and the other says, in effect, that the appellant did not know how the mishap occurred other than that he was dazzled by lights and lost control of his vehicle.  Neither mentions that the appellant was forced off the road by the oncoming vehicle travelling partly on its wrong side.

The primary judge accepted that Sobey and Hoiberg accurately recalled the essence of the conversations they had with the appellant.  In this Court, counsel for the appellant argued that his Honour did not, in using the evidence of Hoiberg and Sobey against the appellant, sufficiently take into account that the appellant was then seriously injured.  On that subject, the judge remarked that he hoped that he had made due allowance for the appellant's physical condition and state of mind at the relevant time.  But it was contended for the appellant that he could not have given a proper account of the matter, either when he discussed it with Hoiberg on the day after the accident, or when he discussed it with Sobey about a fortnight later.

On that subject, there was evidence in favour of the appellant and evidence against him.  He said in effect that when he got to hospital after the accident and spoke to a doctor he remembered the other car forcing him off the road.  The appellant made no reference in his evidence to having explained the accident to Hoiberg on the day after it occurred, but told the judge of his conversation with Sobey, on the occasion when Sobey gathered information to fill in the insurance claim form.  The appellant said that Sobey wrote the account of how the accident happened, quoted above, in the appellant's presence;  he said he gave Sobey a description and Sobey wrote it down.  When the judge asked the appellant whether the appellant had seen what Sobey wrote down before it was sent off the appellant replied:   "No - as far as I am aware".  He also said that at that stage he "found it difficult to address anything about the accident", that he did not go into all the details and kept the statement brief.  When asked whether he told Sobey about the car being on the wrong side of the road he said he did not remember and also said that:

"I think I would have because of the dazzling lights being on my side of the road - I did".

In his account of the conversation with Sobey, the appellant did not say that he was then incapable of explaining what happened, but said:

"I was coming to terms with the accident and I just didn't want to deal with any forms at the time".

He also said that when he spoke to Sobey he wanted to distance himself from the accident situation.

The appellant said that he was heavily sedated with pethidine for about a week after the accident and, if so, it seems evident that that could have affected his discussion with Hoiberg on the day after the accident.  But there was medical evidence that only small dosages of pethidine were given which would not have been effective by 3 p.m., when Hoiberg came to see the appellant.  There was no suggestion that the appellant was affected by pethidine when he spoke to Sobey.  Further, although undoubtedly the appellant must have been very distressed shortly after the accident, the medical evidence is, in general, inconsistent with his being in a condition in which he was unable to give an account of himself.  He arrived at Nambour Hospital at midnight, after the accident, and the admitting doctor noted that he was conscious, alert and complaining of a painful neck, weakness of his arms and absent sensation in the lower limbs.  A Dr. Lun admitted the appellant to Princess Alexandra Hospital (where Hoiberg saw him on the day after the accident), and that doctor's evidence was to the effect that he was able to take an adequate medical history.

Perhaps the best evidence for the appellant in support of the contention that the judge should not have taken much notice of what the appellant told Hoiberg on the day after the accident was from Hoiberg himself, who described the appellant at the relevant time as "looking terrible", explaining that the appellant had tongs holding his head and an intravenous drip in his arm.  Hoiberg was so shocked he had to leave the room.  When asked whether the appellant appeared to be "understanding completely what was being discussed", Hoiberg said that he did not think so.

The judge, who referred to the evidence just mentioned in his reasons, was not entitled, according to the appellant's argument, to act on the evidence of Hoiberg and Sobey.  We are invited to reverse his Honour's finding to the effect that the appellant omitted to say anything suggesting fault in another driver when he spoke to Hoiberg and Sobey, because he then believed that he had lost control of his vehicle without anyone else's fault.  It seems to us clear that it would be contrary to principle to do so.  There is no suggestion that the judge has overlooked or misunderstood a significant part of the relevant evidence, nor does any other ground exist which would justify our setting aside the judgment given, on the basis that the relevant findings were not open.

In our view, the conclusions of the judge which have just been discussed are related to those now to be discussed.  The latter had to do with the question whether a seat belt was worn at the time of the accident.  It appears that the judge treated both categories of evidence as tending against acceptance of the appellant's case.  The judge held in effect that the appellant was not wearing a seat belt at the time of the accident and that he did not tell the truth in court on that subject.  His Honour remarked:

"The plaintiff's unequivocal assertions of a distinct recollection of having buckled up his seat-belt cannot, I think, be seen as an honest attempt to recount his memory.  His evidence on the topic does, however, tend to confirm an impression that his erroneous statements concerning the conversations with Mr Sobey and Mr Hoiberg about how the accident happened were not honest mistakes either."

A Dr W A Davies, a consultant physician, saw the appellant on the morning after the accident and made a note to the effect that a seat belt was not being worn.  Dr Davies conceded that there could have been a misunderstanding, but said "I don't think I would write something if he wasn't explicit".  He also said that abrasions and bruises are often, but not always, found when someone wearing a seat belt in a vehicle comes to a relatively sudden stop.  A Mrs Jeffery, who came upon the scene of the accident after it occurred, said that she could see that the appellant did not have a seat belt on.  A Mr Fisher, who also saw the appellant at the accident scene, noted that he was lying on the hood.  Mr Fisher could not recall that he was wearing a seat belt.

By way of explanation for what the appellant is recorded as having told Dr Davies, the appellant said that he was very, very heavily sedated and very heavily in shock and the whole world was spinning around him at the time.  The judge did not accept that and, for the reasons mentioned above, that view appears to have been open to his Honour.

The basic facts before the primary judge were such as, in our view, to make the claim a difficult one.  There were documents setting out the understanding of Hoiberg and Sobey with respect to the way in which the accident occurred, that understanding having been obtained in conversations with the appellant within a fortnight of the accident.  The claim prepared by Sobey appears, on the face of it, to have been quite meticulously done;  it contains no suggestion that the appellant was forced off the road by an oncoming vehicle encroaching across the centre line.  The form Sobey filled in included a question as to whether there was fault by the other party;  the answer given was "nil".  It appeared that, although the appellant's evidence was to the effect that he blamed the oncoming driver from the outset for his misfortune, and was angry on that account, he first made the assertion that the accident happened in the way to which he swore before the primary judge, at a time which was months after his injury was sustained.  It was possible to advance explanations for the inconsistency between the account apparently given to Sobey and to Hoiberg and that given in court, but his Honour did not act on the view that any such explanation adequately accounted for the discrepancy.  The conclusion at which his Honour arrived, that the version given in court was not a correct account of the incident, has not been shown to be wrong;  indeed, it appears to us, so far as one can tell from reading the relevant parts of the record, to be right.

The alternative argument advanced by counsel for the appellant was that, if the judge was not obliged to accept that the appellant's vehicle was forced off the road by an oncoming vehicle travelling on the wrong side, his Honour should at least have accepted that the accident was caused by an oncoming vehicle with dazzling lights.  There appears to us to be very little in this suggestion.  Since the appellant's car was travelling around a left-hand bend, one would expect the oncoming vehicle's lights not to shine directly on the appellant's car, unless they were misaligned.  But more importantly, there was no evidence upon which the judge could properly have found that there was anything wrong with the state of the oncoming vehicle's lights.  The form filled in by Sobey indicated that it was not known whether that vehicle's lights were dipped or not.  When asked about that, the appellant said that he did not remember saying to Sobey that he was not sure whether or not the headlights were dipped.  If the judge had been asked to find for the appellant on the basis that the oncoming vehicle's lights were on high beam and caused the accident, it would surely have been difficult for him to do so, but as we have explained, no such case was argued below.  It would, as it seems to us, not be a proper course to give the appellant a new trial, to attempt to persuade a judge that his claim should succeed on a basis which was abandoned before Byrne J.

It should be added that the appellant's argument included some minor criticisms of the details of the judge's reasons;  we have taken these into account, but do not think it necessary to discuss them.  The crux of the appellant's case was that the judge, who did not believe the appellant, was obliged to do so, although there were in our view reasons for disbelieving him.

The appeal must be dismissed with costs.