Ploughman v Friend
[2002] TASSC 53
•21 August 2002
[2002] TASSC 53
CITATION: Ploughman v Friend [2002] TASSC 53
PARTIES: PLOUGHMAN, Collin Edwin
v
FRIEND, Matthew John
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 530/1999
DELIVERED ON: 21 August 2002
DELIVERED AT: Hobart
HEARING DATES: 16, 17, 21 - 23 May 2002
JUDGMENT OF: Slicer J
CATCHWORDS:
REPRESENTATION:
Counsel:
Plaintiff: A R Mills, C M Schokman
Defendant: D J Gunson SC
Solicitors:
Plaintiff: Piggott Wood & Baker
Defendant: Gunson Williams
Judgment Number: [2002] TASSC 53
Number of Paragraphs: 37
Serial No 53/2002
File No 530/1999
COLLIN EDWIN PLOUGHMAN v MATTHEW JOHN FRIEND
REASONS FOR JUDGMENT SLICER J
21 August 2002
The plaintiff's claim for damages arises out of a motor vehicle accident which occurred at Bellerive on 14 July 1998. The plaintiff was driving a 750cc Honda motorcycle east along Clarence Street towards its intersection with High Street. The defendant, driving a Ford sedan, was driving west along Clarence Street intending to turn right into the northern section of High Street. The collision occurred at the junction. Each party provided a different account of the circumstances. Neither driver was licensed, although the reasons for that are different. Alcohol played no part in the incident. An unwarranted claim made by the plaintiff in his pleadings that the defendant had driven "his vehicle whilst under the influence of a drug, namely cannabis" was not pursued at trial, with the plaintiff claiming that he had not instructed his solicitor to plead this particular.
The intersection
On the western approach to the junction there extends a double white line which ended before a small safety or traffic island, permitting vehicles to turn across the eastern side carriageway. The double lines, if extended, would pass to the southern side of the traffic island. On the eastern side of that traffic island were parallel broken lines leading up to the concrete surrounds of the island, alerting oncoming motorists to the obstruction to the carriageway. The island provided a safety measure for pedestrians using a shopping complex and vehicle service station on the northern side of Clarence Street. The island also operated as a vehicular safety feature in that it protected vehicles turning right into High Street so that they could move to the centre of the carriageway to permit following traffic to pass the stationary vehicle on its "inside", while preventing west bound traffic from colliding with the turning vehicle.
The plaintiff's case is that the defendant either continued his turn across or stopped, in preparing for a turn, in the plaintiff's carriageway. The defendant's version is that the plaintiff mistook the position of the defendant's vehicle and, believing that it was continuing its turning movement, swerved to avoid contact and ran into the defendant's stationary vehicle.
The accident occurred at approximately 6.30pm on a July evening. It was dark but the weather was reasonable. There was lighting appropriate for a suburban main road. The road surface was bitumen and in good repair.
Plaintiff's version
The plaintiff had commenced his journey some 200 - 300 metres back from the intersection and was travelling to Lindisfarne. He had chosen to travel via a link road which permitted a faster and less obstructed journey. He estimated his speed approaching the intersection to be approximately 45 - 50 km/h and had, since commencing his short journey along Clarence Street, changed into the fourth of his five available gears.
He has provided a number of differing accounts as to the circumstances giving rise to the accident. He told police that he was in the centre of his lane travelling at approximately 50 km/h and when he was some 30 metres back from the intersection, he saw the other vehicle appear to come into his lane. He said:
"I had turned right out of Beach Street into Clarence Street travelling toward the Shoreline. As I approached High Street, this vehicle stopped and gave me the impression that the vehicle was going to turn right.
As I approached, I was travelling in the centre of my lane, and doing about 50Kmh. I would have been about 30 metres from the vehicle, when it appeared to commence to enter my lane.
I braked, and pulled more to my right he appeared to stop, then commence to move again. I then braked and the vehicle stopped again. At that time, I collided with the front left corner of the vehicle. As a result of the collision, I hit the ground hard, but got straight back up on my feet."
A significant issue at trial was the movement of the defendant's vehicle and whether or not it was stationary or moving at impact. The plaintiff, in his written claim to the MAIB, estimated the speed of the other vehicle to have been 20 km/h upon impact, a claim repeated in his answer given to interrogatory No 7. In answer to interrogatory 20, he described the movement of the defendant's vehicle over a distance of 100 metres leading up to the collision as:
"I only observed the other vehicle when it was 25m in from the point of collision. It appeared to slow down when it was opposite the centre line of High Street and then commenced turning right into my lane when my vehicle was about 15 m from the point of collision"
and further that the defendant's vehicle was between one half and two thirds across his laneway at the point of collision. He further answered interrogatories stating that he was in third gear at the time of collision and that he had braked before impact.
The plaintiff's account at trial was that he was travelling some two metres from the centre line at a speed of between 45 - 50 km/h when he saw approaching traffic some 70 metres distant. He saw another vehicle some 20 metres back from the turning area indicating that it was about to make a right hand turn and commenced a braking manoeuvre. He then described the other vehicle as commencing a turning movement and then coming to a stop. He described a "start, stop, start" movement, occurring when he, the plaintiff, was some 20 metres back from the intersection. The plaintiff said that he changed gears and braked and moved to the right intending to pass to the rear of the turning vehicle. The point of collision was in his lane and is said to have been at and between the front wheel of the motorcycle and the front left side of the Ford sedan. The plaintiff said that the force of impact caused the motorcycle to fall to the ground while he, the driver, was thrown onto the bonnet of the vehicle, striking the windscreen before landing on his feet in front of the sedan.
The plaintiff explained his previous inconsistent versions as being due to shock or misunderstanding.
His case at trial was effectively a claim of indecisiveness on the part of the other driver when contradictory movements led him to believe that the other vehicle would continue with its turning manoeuvre, which, in turn, caused him to attempt to avoid a collision by attempting to pass to the rear of the defendant's vehicle. He contended that in his belief, the other vehicle was stationary at impact, or, if moving, then only slightly, but nevertheless occupied a portion of his laneway. He denied any misjudgment on his part. He claimed that the earlier accounts of continued movement were a result of reconstruction and confusion, rather than clear memory.
The police officer who attended the scene of the accident observed debris at the centre of the intersection where the median strips intersected. He did not recall the plaintiff stating that he had been thrown onto the bonnet of the other vehicle or striking the windscreen.
Defendant's version
The defendant was intending to visit a friend who lived in or off High Street. As he approached the intersection, he operated his indicators and moved to the centre of the road so as to permit following vehicles to pass. He said that his vehicle was stationary, possibly at a slight angle, when he first saw the other vehicle some 40 metres away. He remained stationary and the other vehicle, then seen to be a motorcycle, continued on and impacted with the front left hand side of his vehicle at or near the front headlight. After impact, he saw the other driver remain on his motorcycle, with both falling to the ground. He did not see the plaintiff come onto the bonnet or strike the windscreen. He claimed to have asked the plaintiff whether he was "all right" and "what are you doing mate, where were you going?", a version different to that provided by the plaintiff. He conceded that the motorcycle could have altered direction slightly just before impact.
His account, given at trial, was consistent with that provided to police shortly after the accident, and with that subsequently given to his insurer.
Liability
The onus of proof rests with the plaintiff and, in this case, much of that issue depends on the credibility of the plaintiff as a witness.
Much cross-examination was directed at the issues of the failure of the plaintiff to possess a motorcycle licence and to his previous driving record. Those issues, in themselves, are of no import in any determination of negligence on a particular occasion. However, his answers to questioning on these issues were evasive and self-serving. Concessions, if any, were reluctantly made, betraying a sense that any suggestion of error in the past would weaken a claim for damages. The trial was conducted, for convenience, in two parts, with evidence as to liability being heard before that of compensation. In some cases a witness might be credible as to liability, but exaggerate as to the extent of harm, or vice versa. In this case, the plaintiff prevaricated or attempted avoidance in both areas and his credibility was weakened on both issues of liability and quantum. His evidence in relation to work history and opportunity, prospects or absence thereof, absence of documentation and his claim as to the extent of harm caused, are matters which affect his case generally.
His evidence, given at trial, was internally inconsistent and his answers given during cross-examination were evasive and unconvincing. There were significant differences between what he told police and the Court, and his account of the circumstances whereby the statement was made unconvincing. There were significant differences between his statement to the insurer, answers to interrogatories and evidence given at trial. His statement in cross-examination that the defendant had, in effect, admitted liability, had not been led during his evidence-in-chief and has the characteristics of a self-serving statement.
The Court concludes that much of his evidence was a result of reconstruction. That is not to be taken as a finding of conscious falsehood, but one of an attempt to place conduct in a manner which would enhance a claim for damages.
It follows that the plaintiff has not established his case to the requisite degree.
Even if this conclusion be harsh, its making is justified by consideration of the evidence of the defendant and the location of the accident. The defendant had little, if any, reason to enhance his version and on one occasion conceded that an answer given to interrogatories was more likely to be more accurate than a comparable answer given at trial. His evidence was consistent, both internally and by reference to earlier accounts given to police and an insurer. The plaintiff relied on the evidence of the police officer who attended the accident scene and who recollected that the defendant told him that he believed the plaintiff was intending to turn to his right. The defendant had no memory of making this statement. It may well be that the statement was made. But its making is disjunctive. That could well have been the belief of the defendant, but it does not follow that it contradicts his version that he was stationary prior to impact.
The presence of the traffic island and its location affording protection to both pedestrians and turning vehicles, make it likely that the defendant's version is accurate. The defendant's vehicle moved into a protected zone and would remain at a slight angle to Clarence Street. A motorcycle could travel close to it without danger. The speed of the motorcycle, the relatively small amount of damage, and its location, make it more likely that the defendant's vehicle was stationary. Had the defendant commenced a turning movement across the laneway, it is most likely that impact would have occurred on the left hand side of the sedan. Insofar as is necessary to make a finding, I conclude that the plaintiff was driving along Clarence Street, still accelerating to about 50 km/h when he observed a vehicle move towards the centre line near the traffic island. The state of light in all probability contributed to the plaintiff's perception that the vehicle might continue with its turning motion. The plaintiff either misjudged the situation or believed that he would safely pass behind the defendant's vehicle. That misjudgment caused the accident.
It is not necessary to make precise findings, given the onus of proof requirement, but the above findings are sufficient to conclude that there is no question of a finding of contributory negligence on the part of the defendant.
Assessment of damages
It is appropriate to make an assessment of damages, irrespective of the finding as to liability. However, the question of credibility impacts on both issues. The Court does not accept the plaintiff as an accurate witness and the view reached during his evidence on liability impacts on the assessment of damages.
The plaintiff's evidence concerning his work history, reasons for leaving an employer, his future prospects and rates of return was not convincing. Claimed interference with regular recreational activities such as kayaking and tennis were exaggerated. There was internal inconsistency and contradiction between his evidence-in-chief and answers given during cross-examination. Written documentation produced by him was incomplete or contradictory. His evidence was contradicted by two former employers and admitted circumstances surrounding the making of an "unfair dismissal" claim. The evidence of the previous employers is preferred.
Again there is no finding of dishonesty. The process of reconstruction often occurs during litigation in cases where the person perceives, both consciously and unconsciously, that the outcome is dependent on the preparation of a version most in accordance with the desired outcome.
The plaintiff suffered a significant injury which has impacted on his life and physical work activity. He had been injured following a motorcycle accident in January 1998, but appears to have recovered from the effects of that accident. The accident in July of that year resulted in a fracture to the right wrist which required the insertion of a buttress plate, immobilised by a cast. The fracture caused significant pain and discomfort and resulted in loss of flexion and restriction in function. The plaintiff has worked hard at rehabilitation but remains subject to disability. In the opinion of an examining orthopaedic surgeon expressed in April 2002, the plaintiff has:
"… a normal range of movement in his left wrist. In his right wrist he lacked 15 degrees of supination and 30 degrees of flexion, giving him some discomfort at the extremes. This leaves him with a range of movement of 65 degrees of supination, full pronation, 45 degrees of flexion and 45 degrees of extension."
In respect of discomfort, the surgeon agrees that:
"He does have slightly altered sensation in the median nerve distribution of his palm. He has no burning sensation but he does have silky skin on light palpation. There is no thenar wasting."
The surgeon expects the need for a further operation to remove the buttress plate and concludes that the plaintiff has:
"… a 5% residual disability in his right arm as a consequence of his right wrist injury."
The disability inhibits the capacity of the plaintiff to perform manual tasks and prevents any return to heavy labour. He continues to experience pain and discomfort and any form of repetitive activities exacerbates his condition. His condition ought improve with time and removal of the buttress plate, but a reasonable inference is that he will suffer from a permanent disability.
Pain and loss of amenity
The plaintiff suffered considerably in the months following the accident and although his condition has improved, he continues to take a moderate amount of medication for his pain. He has been restricted somewhat in his lifestyle activities, but not to the extent claimed. The award for suffering and loss of amenity would be $20,000.
Special damages
The plaintiff has spent money for medication, physiotherapy and other medical expenses. In addition, he purchased some items which were work related. The claim, not contested, amounts to the sum of $996 and ought be allowed. An account for treatment at the Royal Hobart Hospital amounting to $3,146.20 remains unpaid. The sum of $4,142 ought be awarded.
The plaintiff will require an operation for the removal of the buttress plate, which will cost approximately $3,000 and ought be allowed. Future medication assessed at the current rate of use is assessed as claimed, namely $1,469.
There is a slight chance that the plaintiff will require an arthrodesis or wrist replacement in some 10 - 20 years if continued use of the wrist is required by certain forms of employment. The chance is slight and the claim will be heavily discounted, both because of probability of occurrence and likelihood of continued manual employment. The present cost of arthrodesis is approximately $10,000, whilst that for wrist replacement is between $15,000 and $20,000. A figure of $5,000 would be the appropriate award.
In the event that liability is determined in favour of the plaintiff, the award for special damages ought be:
Buttress plate $3,000 Past medical and work related expenses $4,142 Future medical expenses $6,469 Arthrodesis $5,000 Total
$18,611
Past economic loss
The plaintiff was unable to resume work or to find employment because of his injury from the date of the accident until 4 February 1999. The amount claimed, namely $13,030, is not unreasonable. He remained in employment from that date until 31 May 2001. He claims that his employment with the Tasmanian Tyre Company (the evidence shows a change of name and ownership) ceased on 31 May because of his physical inability to perform certain work. The termination of employment resulted in a claim for wrongful dismissal. This was settled without any finding on merit. The employer gave evidence at trial and the Court accepts his version that the dismissal was caused through unsatisfactory work performance, rather than physical incapacity. Nevertheless, the plaintiff was transferred from a position of sales representative to plant operator and the difficulties experienced by him following transfer might well have been exacerbated by his physical condition. The plaintiff has since obtained employment, but the Court is not satisfied that the terms and conditions of such employment are as meagre and spasmodic as claimed. The plaintiff claims loss of earnings for the period 31 May 2001 to June 2002 in an amount of $26,000, less casual work estimated to be $6,000. The plaintiff has not established the accuracy of the claim. The Court is not satisfied that the reason for termination was a consequence of physical incapacity or that the plaintiff's current employment is as casual or intermittent as claimed. Nevertheless, some of the difficulties experienced by the plaintiff in holding or obtaining appropriate employment can be attributed to his lessened physical capacity. The claim ought be reduced significantly and an amount of $12,000 assessed, amounting to 60 per cent of the claim.
Lost superannuation has been claimed in an amount of $912 on the initial loss and $2,060 for the second. The first ought be allowed in full, the latter at 60 per cent, namely in the amount of $1,236.
The award can be summarised as:
| Loss | July 1998 - February 1999 Superannuation | $13,030 $912 |
| Loss | May 2001 - May 2002 Superannuation | $12,000 $1,236 |
| Loss | Trial until judgment including superannuation | $2,000 |
| Total | $29,178 |
Future economic loss
The plaintiff claims to have suffered a diminution of earnings of 50 per cent by reason of injury and estimates his loss, based on present capability, in the sum of $358,020, arriving at a claim of $179,000. The basis is rejected. The plaintiff is intelligent and much of his working life has involved mental skills and normal capacity, rather than hard physical labour. The limitations of his present employment are the economics of the industry, rather than his physical capacity. He is capable of retraining and his educational ability is not as limited as claimed. The vagaries of economics limit his ability to seek and obtain work involving hard physical labour, but future loss ought be awarded on the basis of capacity to work in an area commensurate with his present state. The Court is not satisfied that the plaintiff has established future loss to the extent claimed. Assuming, as best one can, future disability affecting employment, and making an estimate which favours the plaintiff, an award of $40,000 will be made.
Conclusion
On the basis that the plaintiff succeeded in his claim based on liability, the Court assesses the damages in the following terms:
| Pain, suffering and loss of amenity | $20,000.00 |
| Special damages | $18,611.00 |
| Past economic loss | $29,178.00 |
| Future economic loss | $40,000.00 |
| Total | $107,789.00 |
Given the findings in relation to liability, that award will not be made.
There ought be judgment for the defendant.
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