Player v Goymer
[1996] QSC 9
•23 February 1996
IN THE SUPREME COURT
OF QUEENSLAND
Writ No. 126 of 1992
Brisbane
Before Justice Byrne
[Player v Goymer]
BETWEEN:
TROY ADAM PLAYER
Plaintiff
AND:
RAYMOND CLIFFORD GOYMER
Defendant
REASONS FOR JUDGMENT - BYRNE J.
Judgment delivered : 23/02/1996
CATCHWORDS: NEGLIGENCE - motor vehicles - whether defendant negligent.
Counsel:Mr P Matthews for the plaintiff
Mr B L P Hoare for the defendant
Solicitors: McInnes Wilson & Jensen for the plaintiff
O'Mara Patterson & Pernier for the defendant
Hearing Dates: 8 & 9 February 1996
IN THE SUPREME COURT
OF QUEENSLAND
Writ No. 126 of 1992
Brisbane
Before Justice Byrne
[Player v Goymer]
BETWEEN:
TROY ADAM PLAYER
Plaintiff
AND:
RAYMOND CLIFFORD GOYMER
Defendant
REASONS FOR JUDGMENT - BYRNE J.
Judgment delivered : 23/02/1996
It is not uncommon for a collision to occur when a vehicle turns across the path of a motor cycle. That is what happened in this case, but in extraordinary circumstances.
On 16 March 1990, the plaintiff, then aged 16, rode his two‑stroke, single-cylinder, Suzuki trail bike along Deception Bay Road to a pine forest. He was not licensed to ride; his bike was unregistered. So, expecting to avoid prosecution, he rode beside the bitumen. The bike ran out of fuel in the forest. The plaintiff pushed it to a service station on Deception Bay Road, arriving there at about 7 p.m. The proprietor refused to store the bike overnight, and the plaintiff did not want to push it all the way home. The plaintiff telephoned his mother to explain his plight. A few minutes later, his parents arrived by car with fuel. The plaintiff refuelled the bike and spoke to his mother about getting home, which was less than five minutes drive away. It was about 7.10 p.m.
Apart from the engine, the bike was in very poor condition. The front brakes were serviceable. The rear brakes were not. The horn had been disconnected. The exhaust baffle had fallen off. Importantly, none of the lights worked. Appreciating that the night posed special risks, the plaintiff agreed with his mother on a plan: to ride home beside the family car so that road users could see the bike illuminated in the headlights. The idea also had the advantage that the plaintiff would be better able to see ahead. This arranged, the plaintiff put on a white, long-sleeved jacket, rode out of the service station, crossed a busy Deception Bay Road, and, keeping to the gravel verge, headed south towards Coman Street North. The plan miscarried straight away; the plaintiff's parents were delayed in crossing Deception Bay Road. Unfortunately, the plaintiff did not wait for them.
The stretch of Deception Bay Road approaching Coman Street from the direction of the plaintiff's travel consisted of two lanes of straight, flat bitumen. The speed limit was at least 70 kph. There were overhead lights not far from the intersection with Coman Street. However, one was not functioning and most of the illumination in the vicinity of the intersection came from the headlights of passing vehicles. As the plaintiff approached Coman Street, the lighting was so dim that all the other vehicles on the road had their headlights on. It was about 7.15 p.m. and, in a word, dark.[1] The plaintiff rode beside the bitumen towards Coman Street at about 60 kph.
As the plaintiff neared the Coman Street intersection, he saw a white truck stationary on Deception Bay Road with its headlights on. The trafficator was flashing, indicating the driver's intention to turn across the plaintiff's path into Coman Street North. Soon the truck began to turn. Realizing that the driver had not seen him, the plaintiff tried to slow down. He applied the front brakes and perhaps changed gears. It was too late. As the truck was about to enter Coman Street after crossing over the south bound lane of Deception Bay Road, the bike struck the front driver's side of the truck and the plaintiff crashed into the windscreen.
Coman Street North and Deception Bay Road did not intersect at right angles. The defendant had to negotiate about a 45 degree turn to enter Coman Street. The defendant, whose evidence I accept, testified that he kept his truck stationary until approaching traffic passed him by. Then, with his headlights appropriately on low beam and the radio playing, he drove across the road in second gear. Entering Coman Street North, he heard an "impact" and his windscreen "caved in". Immediately, he applied his brakes. His slow moving vehicle stopped quickly. About four seconds had elapsed since the turn had commenced. The defendant did not notice the bike or the plaintiff before impact.
More should be said of the place of the collision and speeds. The gravel verge narrowed just to the north of Coman Street. This meant that the bike was close to, indeed may have slightly intruded upon, the eastern alignment of the bitumen surface of Deception Bay Road when the collision occurred. The plaintiff gave more than one estimate of his speed at collision. At first he said he was moving at 60 kph as he approached the intersection and that he decreased his speed by 20 kph before impact. In cross-examination, however, when asked about his speed as he "hit the vehicle", he answered "approximately 60 kilometres". Later on, he again spoke of an impact speed of about 40 kph. The bike had no functioning speedometer, and there is reason to suppose that the plaintiff's 40 kph estimated impact speed is no understatement. Mr Adermann, who was standing by the side of Deception Bay Road about 80 m from Coman Street, had his attention attracted to the bike by a "very loud" noise sounding, he said, "like a motor bike in top gear". He looked up to catch a glimpse of the bike shortly before the collision. Mr Adermann's impression was that its speed did not vary from when he first saw it until impact. But he was some distance away and might not have detected a decrease. All considered, probably there was some, but not much, reduction in speed before impact from the about 60 kph at which the plaintiff was riding when he saw the truck begin to turn.
The plaintiff accepts that the defendant could not have seen him or his motor cycle before beginning to turn. The state of the light, the speed of the unlit bike and its peculiar location all support the concession. Despite the yellow metalwork on the bike and the white jacket the plaintiff wore, the defendant could not have been expected to detect the plaintiff's approach until after he moved his truck towards Coman Street.[2] The plaintiff, however, contends that the defendant should have noticed him after turning and then taken evasive action. The plaintiff proposes that liability be apportioned, he bearing 80% of the responsibility. His case is that the defendant (i) cannot have kept a proper look out for the reason that he did not observe the plaintiff or his bike in the split second or so after they might first have been seen in the throw of the headlights before impact; and (ii) more probably than not[3] could then have avoided the collision by, for example, taking his foot off the accelerator. The defendant accepts that there must have been a time before collision when the plaintiff and his bike were illuminated by his headlights. His primary case is that his omission to detect them does not bespeak an absence of reasonable care on his part.
The omission to notice the plaintiff and his bike before impact is not indicative of a failure to keep a proper look out. When the momentary opportunity to observe the plaintiff and his bike in the shifting area illuminated by the headlights of the truck first presented itself (i) the truck had already turned across Deception Bay Road; (ii) it was scarcely then to be anticipated that someone might rush out from the side of Deception Bay Road: the truck had safely negotiated the turn, and to a prudent driver such a possibility would then have seemed far-fetched; (iii) the bike was travelling at about 12 m per second; and, more importantly, (iv) the defendant had other claims on his attention: in particular, a need to look where he was going rather than to his left. In these circumstances, that the defendant did not detect the plaintiff or his bike is unsurprising; and it does not mean that the defendant failed to exercise the standard of care reasonably to have been expected.
My conclusion that the plaintiff has not proved that the defendant did not keep a proper look out makes it unnecessary to consider whether, had the plaintiff or the bike been observed before impact, the collision could have been avoided. The plaintiff's case fails.
There is little dispute about the assessment. For pain and suffering and loss of enjoyment of the amenities of life, the plaintiff seeks $35,000 ($20,000 for pre-trial loss): the defendant suggests $25,000. The plaintiff seeks not less than $40,000 for pre-trial diminution in future earning capacity, and $20,000 post-trial. The defendant proposes that not more than $30,000 be allowed for the pre-trial economic loss and contends for a post-trial award in the range $10,000 - $20,000. Special damages and the component for gratuitous care are agreed. The expenses of a Commonwealth Rehabilitation Service program are admitted but the defendant contends that they should not be allowed.
The plaintiff was severely injured. He sustained a pneumothorax, a fracture of the medial end of the right clavicle, a closed fracture of the middle third of the right humerus, an injury to the right radial nerve, a fractured hip involving the pelvis, a closed fracture of the middle third of the right femur, and a crush injury of the right foot with associated metatarsal fractures. He spent four days in intensive care.
At the Redcliffe Hospital, the plaintiff experienced an open reduction and internal fixation of the right humeral fracture, an intramedullary nail fixation of the right femoral fracture, and an open reduction and internal fixation of the fractures of the right metatarsals with Kirschner wires. There was supplementary skin grafting. The Kirschner wires were removed in late 1990. More surgery was to follow. In late 1991 the intramedullary nail and right humeral bone plate were removed. The femoral surgery was complicated by local haematoma formation in the right hip region which required minor surgery on two more occasions. The plaintiff has extensive and discolouring scarring which is a significant cosmetic blemish and causes him embarrassment. In the initial three months, his mother did "just about everything" for him. After four months or so, he was able to move about without crutches.
The plaintiff has made a remarkable recovery. The best evidence of the extent of his present disabilities is that of Dr Blue, who saw him a few days before trial. The plaintiff then complained of pain in the right upper arm, particularly in cold conditions. He also spoke of pain in the right hip and foot after walking for about 20 minutes. His right leg has been shortened by one inch. Dr Blue considers that the plaintiff has regained normal movement of his right hip, knee, ankle and foot. He also thinks that there is now a normal range of movement of the right shoulder and elbow, with minor shortening of the right humerus. An earlier problem with the right radial nerve function has been overcome, leaving a wrist with a full range of movement and normal sensation and grip strength. Dr Blue considers that the collision has resulted in a permanent loss of function of 8% of the right lower limb but no permanent functional loss in the right upper limb. In Dr Blue's opinion, the plaintiff is fit to work as a labourer despite the minor disability in his right lower leg - a condition which has stabilised and is unlikely to alter significantly in the future.
The plaintiff has experienced several symptoms and disabilities, most of which have largely resolved. His initial injuries and symptoms were extensive and often painful. His great improvement cannot disguise the extent of the accident sequelae, not all of which have been mentioned. His scarring will remain as a life-long problem. He will continue to experience occasional pain, discomfort and some, albeit slight, limitation of movement. The plaintiff does not participate in many activities he enjoyed before his accident. No longer does he roller-skate, water-ski, ride horses or go rock fishing. He is not confident enough to run.
$30,000 is assessed for pain and suffering and loss of the enjoyment of the amenities of life. I apportion $20,000 to the pre-trial period. Interest is allowed at 2% per annum for 6 years.
Apart from working for a few days as a vacuum cleaner salesman, the plaintiff has not worked since his accident. He had worked for a week with East Coast Bull Bars when the accident occurred. But his work there was hard and heavy, and he had already decided to look for other labouring work. Heavy labouring work was beyond the plaintiff's capacities because of a scoliosis and Scheuermann's disease. His only other pre-trial employment had been in cooking for about 3 months and in light labouring work for 9 months. Before his accident, the plaintiff had not sought employment in motor mechanics, although he had "worked on cars and bikes and stuff" for many years. He now intends to become a motor mechanic and has fair prospects of achieving this goal.
The plaintiff is not suited by experience, intellect or education for sedentary work. He left school part way through grade 9 with limited achievement. His lack of success at school may have been partly attributable to an absence from school in year 8 caused by surgery to insert Harrington rods in his back to alleviate his scoliosis.
The plaintiff is undertaking a rehabilitation program to cope with his disabilities, including the limitations associated with his pre-accident back condition. This program will, he expects, eventually lead to a career as a motor mechanic. Of course, the plaintiff will always be exposed to the risk that employers will prefer others to him because of the consequences of his accident. It is also possible that the time he has spent out of the work force because of his injuries may, for some years at least, adversely affect his prospects of gaining employment. Moreover, he will not get work for some time yet while he continues with his rehabilitation course. He should be compensated on the footing that the accident will continue to adversely to affect his employment prospects. Some extrapolations have been made using the Engineering Award - State (see ex.27) to indicate what the plaintiff might have expected to earn had he been in full time employment, initially as a junior and later as an adult. These are an uncertain guide to the loss of this plaintiff with his limited attainments and pre-accident back disability.
Forty thousand dollars would not, I think, overcompensate him for pre-trial diminution in earning capacity. This amount seems to me to make due allowance for the vicissitudes likely to have affected this plaintiff's prospects of otherwise having earned income. That sum will be allowed, as will interest on it at the rate of 6% per annum for 6 years. As to the future, $20,000 seems an appropriate reflex of the loss.
The present and prospective charges of the Commonwealth Rehabilitation Service should be allowed. There is no reason to suppose that this expense would have been incurred in any event. The accident made it appropriate.
The damages are assessed as follows:
[1]In cross-examination, the plaintiff accepted that it was "quite dark" when the accident happened, adding "it wasn't pitch black". This view accords with that of Mr Adermann, who was standing nearby at the time, and that of the defendant, that it was "dark" when the accident occurred. Mr Rubie, who saw the collision in his rear view mirror, described the state of the light as "just about dark".
[2]The plaintiff's concession receives support from Mr Rubie, an eyewitness. Seconds before the collision, Mr Rubie passed the defendant's stationary vehicle, travelling north. Mr Rubie did not see the motor cycle until after passing by. When he looked in his rear vision mirror to discover the source of a noise next to him which sounded "like a jet plane passing overhead", he saw the collision.
[3]cf. Sellars v. Adelaide Petroleum NL (1994) 179 CLR 332, 355; Forbes v. Olympic General Products (Qld) Pty Ltd (1989) Aust. Torts Reports 80 - 301 at p. 69, 294.
Pain and suffering etc pre-trial $20,000.00
Interest at 2% for 6 years $2,400.00
Post-trial pain and suffering etc $10,000.00
Pre-trial diminution in earning capacity $40,000.00
Interest $14,400.00
Post-trial diminution in earning capacity $20,000.00
Agreed special damages $18,677.25
Agreed interest $291.00
Agreed loss in respect of gratuitous services including interest $8,760.00
Past and future rehabilitation expenses $3,830.90
$138,359.15
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