Rickard v Falls

[2000] QDC 79

DISTRICT COURT OF QUEENSLAND

PARTIES:	BRUCE FREDERICK RICKARD (Plaintiff) v. JILL LORRAINE FALLS (First Defendant) and FAI INSURANCE LIMITED (Second Defendant)
FILE NO/S:	Plaint No. 342 of 1999
DELIVERED ON:	22 June 2000
DELIVERED AT:	Maroochydore
HEARING DATE:	25 May 2000
JUDGE:	K S Dodds DCJ
ORDER:	After allowing contribution, judgment for the plaintiff against the second defendant for $28956.27.
CATCHWORDS:	PERSONAL INJURIES – MOTOR VEHICLE ACCIDENT – pl driver of motor vehicle that collided into rear of 1st def’s motor vehicle – 1st def braked heavily for no apparent reason after entering roundabout – wh 1st def breached standard of care of reasonably competent driver – wh pl contributory negligent
COUNSEL:	R J Clutterbuck for the plaintiff R J Lynch for the first and second defendants
SOLICITORS:	Boyce Garrick Lawyers for the plaintiff McInnes Wilson Lawyers for the first and second defendants

1. This was an action for damages for personal injury allegedly arising from a motor vehicle collision.  The plaintiff was the driver of a motor vehicle which collided into the rear of the first defendant’s motor vehicle.

1. The collision occurred on a large roundabout on Maroochydore Nambour Road, a short distance to the west of Maroochydore on 23 July 1998. The roundabout is the intersection of entrances and exits from the Sunshine Coast Motor Way and the Maroochydore Nambour road.  For present purposes, the Maroochydore Nambour road may be regarded as running eastwest.  There were two lanes for traffic approaching the roundabout on the Maroochydore Nambour road from the direction of Nambour in the direction of Maroochydore. There were two lanes on the roundabout.  It had a large circumference. The Maroochydore Nambour road for traffic travelling toward Nambour which had come either around the roundabout or off the southern motor way exit was a separate road from that for traffic travelling toward Maroochydore.  Traffic off the motor way exit I have referred to, wishing to travel to Nambour turned left onto that road immediately on coming off the exit on to the roundabout.  Thus it did not travel around the roundabout at all.

1. Four witnesses gave evidence about the circumstances of the collision.  They were the plaintiff and the first defendant and a man and his wife, Mr and Mrs Bolstad.  They were in another motor vehicle which was travelling in a parallel lane, slightly to the rear of the plaintiff’s motor vehicle. There is no suggestion in the evidence Mr and Mrs Bolstad had any connection with the plaintiff.  The motor vehicles containing the plaintiff, Mr and Mrs Bolstad and the first defendant were travelling toward Maroochydore on the Maroochydore Nambour road.  The first defendant’s motor vehicle was in the right hand lane.  The plaintiff’s motor vehicle was in the same lane behind the first defendant.

1. As frequently happens the passage of time, its effect on memory, the tendency to reconstruction and sometimes a lack of frankness resulted in somewhat different accounts of what occurred.  Nonetheless, I am satisfied on the balance of probabilities that the first defendant braked suddenly and heavily after her motor vehicle had entered onto the roundabout and was crossing the first lane of the roundabout.  At the time she braked heavily, there was no motor vehicle approaching on her right on the roundabout which in reality presented as a danger.

1. It will be apparent I do not accept the first defendant’s evidence that the collision occurred when she was stopped before she entered onto the roundabout.  There may have been, as the first defendant said, a motor vehicle approaching or entering onto the roundabout to her right from the southern motor way exit.  None of the other witnesses who gave evidence of the circumstances of the collision had any memory or impression of that motor vehicle on their right.  I accept their evidence.  There was no other motor vehicle which presented as a danger to the first defendant or them entering onto the roundabout.

1. A possible explanation for the first defendant’s action in braking heavily as she did is that as she proceeded onto the roundabout she suddenly saw or thought she saw a motor vehicle coming off the motor way exit that I have referred to and she reacted by applying her brake heavily.  If there was such a motor vehicle it must have immediately turned left from the exit onto the portion of the Maroochydore Nambour road for traffic travelling to Nambour for it did not come on around the roundabout.  There are of course other possible explanations.

1. I find the plaintiff whose motor vehicle was following directly behind the first defendant’s motor vehicle as he approached the roundabout was alternatively looking to his front and to his right at the roundabout.  When he continued onto the roundabout behind the first defendant’s motor vehicle, he was not keeping a look out to his front.  He was looking to his right and assumed that the first defendant would continue moving.  When he looked to the front, the first defendant had suddenly braked to a stop and he was too close to avoid colliding into the back of her motor vehicle.

1. The first defendant did not stop at the collision but drove on around the roundabout, exiting onto the Maroochydore Nambour road towards Maroochydore.  The Bolstad’s in their motor vehicle followed around the roundabout and saw her motor vehicle exit, slow and then continue on as they continued around the roundabout to assist the plaintiff.  Mrs Bolstad noted the registration number of the first defendant’s motor vehicle.  The first defendant said she stopped further along and inspected the damage to her motor vehicle, however she did not return to the scene.  She drove through the roundabout sometime later on her way home after going to Maroochydore, saw flashing lights and a tow truck but did not stop.  She said she did not realise at the time this could be related to the collision she had been involved in.  She said the next morning, after thinking about it she went to the Nambour Police Station and identified herself.

1. The duty of a following motor vehicle is “…so far as reasonably possible to take up such a position and to drive in such a fashion as will enable him to deal successfully with all traffic exigencies reasonably to be anticipated…”: Brown & Lynn v. Western SNT Co Ltd (1945) 194 SC 31 at 35, Lord Jones-Clark.

1. The first defendant said in evidence she was not aware of the plaintiff’s motor vehicle behind her as she approached the roundabout.  As I have already found, she proceeded onto the roundabout.  There was no traffic on the roundabout which in fact presented any danger.  In those circumstances, she suddenly braked hard.  The plaintiff was not aware of any traffic on the roundabout, which in the ordinary course of things would require a motor vehicle in the position of the first defendant’s motor vehicle or the plaintiff’s motor vehicle to stop and give way.  Nonetheless in the circumstances, I find that the plaintiff was travelling too close to the first defendant’s motor vehicle when he was not looking to his front.  At 20 kilometres per hour, which was the speed at which he said he was travelling a motor vehicle will cover five metres per second.  His failure to keep an adequate look out to his front and his continuing to travel forward behind the first defendant’s motor vehicle when he was as close as he was, interacted.  By the time he realised the first defendant’s motor vehicle had stopped, he could not avoid a collision.

1. I am satisfied there was no reason apparent to any other driver in the vicinity for the defendant’s motor vehicle to suddenly brake.  I find that she was in breach of her duty of care to other road users, in particular traffic following.  To be unaware of following traffic and to brake hard in the circumstances existing, falls below that standard of care reasonably to be expected of a reasonably competent motor vehicle driver.

1. I am satisfied it has been proven the plaintiff was guilty of contributory negligence.  He should not have been travelling as close to the plaintiff’s motor vehicle as he must have been as he began to enter the roundabout when as he was, he was taking his eyes from the motor vehicle in front of him to look to his right.  The possibility of the motor vehicle in front of him not continuing at the same or a greater speed was not something that should have been ignored.

1. I apportion liability for the collision 60 per cent to the first defendant and 40 per cent to the plaintiff.

DAMAGES

1. The plaintiff is 50 years of age.  For the last eight years or so he has worked as a marketing sales representatives for Rothmans of Pall Mall.  The job entails a lot of driving, getting into and out of motor vehicles, some carrying of cartons, some stacking of material high up and down low in awkward places.  Recently, his employer has merged with another global tobacco company.  There is a process of restructuring which is ongoing.   There is concern among employees there may be rationalisation of employment.  The plaintiff as an older employee, is concerned about his job security.

1. Although the plaintiff was driving the following motor vehicle, the speed of impact was not great and he had some extremely brief pre-warning of impact, I find he suffered soft tissue musculo ligamentous injury to his spinal area due to the sudden deceleration resulting from the impact.  He had injured his lumbar spine years earlier.  It occasionally gave him some discomfort.  He says that the discomfort in his lower back area enlarged after the collision.  He has some radiation of pain into a buttock. 

1. I accept what he says about his low back area.  He made mention of it quite early after the collision to medical professionals he saw.  However his major problem was and is in his cervical spine area.

1. The plaintiff had diffuse degenerative changes evident on xray of his spine.  They were reported by the radiologist as relatively minor.  Doctor Curtis, orthopaedic surgeon considered that description as inadequate.  He thought the changes were more of a moderate nature.  Doctor Pentis, orthopaedic surgeon, considered the changes were greater than relatively minor.

1. The plaintiff was examined by three orthopaedic specialists in late 1999.  Their clinical findings were similar.  There was restriction of movement of the spine.

1. As I said earlier the plaintiff’s major complaint was and still is related to the area of his cervical spine, particular on the right side.  The onset of pain restricts his activity.  It is particularly brought on by driving, from holding his neck flexed eg. using his laptop computer in his work, extending his neck eg. reaching up to high areas, working down low, particularly in awkward places, carrying heavy cartons, washing his car, mowing his lawn and such like.

1. I accept the evidence of Doctors Curtis and Pentis.  I find that the forces of the collision acting on the plaintiff degenerative spinal structure, particular in the cervical area rendered them symptomatic.  I accept the plaintiff evidence that the area of his cervical spine prior to the collision was asymptomatic. 

1. Since the collision, he has had quite a lot of physiotherapy and there has been a fairly marked improvement in symptoms.  Nonetheless symptoms as previously described remain. 

1. Doctor Curtis estimated that within five or ten years similar symptoms would have been experienced by the plaintiff from the progression of degeneration.  Apart from that, other traumatic events which may have occurred may well have led to a similar result.  For instance, recently the plaintiff has been involved in another relatively minor motor vehicle collision.

1. I assess damages as follows:

PAST ECONOMIC LOSS

1. The plaintiff lost time off work.  It appears he did not actually lose any income. His employer or WorkCover paid him.  The weekly benefit paid by WorkCover was $2142.46.  I assess damages under this head in the amount of $2142.46.  I assess no interest.

FUTURE ECONOMIC LOSS

1. It appears the plaintiff has always worked.  He has a fairly wide experience, mainly in physical type work until starting his present job.  In the year just past in his current job, he has achieved a high performance rating.  I accept that he experiences discomfort in performing his work at that level.  He makes what adjustments he can to reduce discomfort.  The merger process his employer is involved in may result in employee rationalisation.  It seems to me however that the contribution of the plaintiff’s symptoms to the chance that he may lose his employment is not particularly great.  If he were to lose his employment he is of course on the open labour market and must compete for other work.  I find that his capacity for work is adversely affected by discomfort and restriction in his cervical spine area.  I assess damages on the basis that there is a chance he will find himself on the open labour market in the future.  I assess damages under this head in a global amount of $10000.

GENERAL DAMAGES

1. As I have found it is the area of his cervical spine which remains of most concern.  I find the discomfort and difficulties he experiences are due to the trauma of the collision in question.  I find that the present symptoms he describes in his lower back result from the collision also.  However, in my view they add little overall to his problems.

1. I accept that following the collision they plaintiff suffered considerable discomfort, particularly in his cervical spine.  He also suffered some increased discomfort in his low back area.  He suffered bad headaches.  He tried to get back to work but could not.  When he did return, his employer put him on light duties for a time.  He underwent quite a lot of physiotherapy in 1998.  A total of thirty-three treatments commencing on 27 July 1998.  He returned to physiotherapy in late 1999 in an attempt to reduce discomfort.  He has not continued with it.  I accept his evidence that he cannot afford it on a regular basis.

1. So long as the plaintiff continues to work as he presently does his working life will be attended with discomfort in his neck and upper back on the right side.  He will experience headaches.  I have approached future economic loss on the basis that the plaintiff will continue to apply himself in his present job.  Other common place activities such as washing his car, mowing his law and gardening, all of which he used to take a pride in must be approached cautiously.  He has some difficulty sleeping.  When he gets up in the morning his neck is stiff.

1. I assess damages under this head in the sum of $25000.  Fifteen thousand dollars of that amount relates to the period pre-trial.  After taking into account the WorkCover disability settlement, I assess interest at two per cent, which I round off in the sum of $235.  

NEED FOR CARE AND ASSISTANCE

Pre-trial

1. I find that initially the plaintiff needed a fair amount of assistance.  Over time treatment, including physiotherapy reduced the level of disability due to discomfort.  I will take an average of three hours per week, over a 17 week period which is to the latter part of November.  I will take an average of two hours per week thereafter to trial.  I assess damages under this head in the sum of $2000.  I assess interest at three per cent rounded off to $55.

Future

1. I think it reasonable to allow one hour per week for a period of five years.  I assess damages under this head in the sum of $2550.

FUTURE PHYSIOTHERAPY.

1. I am satisfied the plaintiff would obtain some benefit from physiotherapy treatment from time to time.  As I have already observed his continuing to work in his job at the level at which he does will continue to cause him discomfort.  Some physiotherapy will probably assist to continue to perform in his work.  I will assess damages at $780 per year for five years into the future for ongoing physiotherapy treatment.  I assess damages in the sum of $3500 under this head.

FUTURE MEDICATION

1. The plaintiff takes anti-inflammatory medication or analgesics when necessary.  I accept his evidence that he tries to avoid taking them as much as possible.  I assess damages in the sum of $250 for this for the future.

SPECIAL DAMAGES

1. Included under this head are medical expenses which have been paid by WorkCover, other expenses paid by WorkCover, $193.85 for other medical expenses to be refunded to the Health Insurance Commission, travel to and from medical practitioners, pharmaceutical and analgesics expenses and the cost of one visit for physiotherapy not met by WorkCover.  I assess damages in the sum of $2520.  I assess interest at five per cent on $184 of that amount which is the total of $50 for travel to and from medical practitioners, $34 for our session of physiotherapy not paid by WorkCover and $100 for pharmaceutical and medical expenses.  I round interest off in the sum of $8.

Damages total: $47962.46

Interest total: $298

1. After allowing for contribution I give judgment for the plaintiff against the second defendant for $28956.27.

DISTRICT COURT OF QUEENSLAND

PARTIES:	BRUCE FREDERICK RICKARD (Plaintiff) and JILL LORRAINE FALLS (First Defendant) and FAI INSURANCE LTD (Second Defendant)
FILE NO/S:	Claim No. D342 of 1999
DELIVERED ON:	27 July 2000
DELIVERED AT:	Maroochydore
HEARING DATE:	Written submissions made
JUDGE:	KS Dodds DCJ
ORDER:	Order the second defendant pay the plaintiff’s costs to be assessed as if the proceeding had been started in the Magistrates court.  Further order the plaintiff’s costs of the action on the issue of liability be calculated on the indemnity basis.
CATCHWORDS:	COSTS – OFFERS TO SETTLE – pl offered to settle liability on the basis he recover 30% of his damage – def did not accept offer or make own offer
COUNSEL:	R J Clutterbuck for the plaintiff R J Lynch for the first and second defendants
SOLICITORS:	Boyce Garrick Lawyers for the plaintiff McInnes Wilson Lawyers for the first and second defendants

1. These reasons relate to the costs of the action.

1. The action was for damages for personal injury arising out of a motor vehicle collision.

1. The plaintiff’s damages were assessed in a total amount of $47,962.46 and interest $298.

1. Taking into account the plaintiff’s contributory negligence, judgment was given for the plaintiff against the second defendant for $28,956.227.

1. On 4 May 2000, the solicitor’s for the plaintiff made an offer to the defendants in accordance with Uniform Civil Procedure Rules 1999 (UCPR) Chapter 9, Part 5 to settle the liability of the plaintiff’s claim against the defendants on the basis that the plaintiff recover 30 per cent of his damage.  The defendants did not accept the offer or make their own offer.

1. Rule 360 applies if a plaintiff makes an offer to settle that is not accepted by the defendant in the circumstances therein described.  An offer to settle under Chapter 9 Part 5 UCPR is an offer to settle one or more of the claims in the proceedings: Rule 353 UCPR.

1. “Claim” is used in UCPR both to described a type of originating process for a proceeding (Rule 8 UCPR) and to describe that which a person claiming thereby seeks to establish or obtain (Rule 22(2)(a) UCPR).

1. Rule 5(1) of UCPR provides that the purpose of the rules is “to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense”.  Rule 5(2) provides “Accordingly these rules are to be applied by the courts with the objective of avoiding undue delay, expense and technicality and facilitating the purpose of these rules”.

1. In this action the plaintiff claimed the first defendant was negligent.  The defendants claimed the plaintiff was negligent.  The plaintiff also sought an award of damages to compensate for injuries received.  I consider that each of the above amounted to a claim in the proceedings as that phrase is used in Rule 353 UCPR.  Each potentially had to be litigated and decided.  The offer to settle had the potential to avoid litigation of two of them, leaving only the amount of damages to be litigated.  It had the potential to save time and expense in the proceedings. 

1. McKenzie J came to a similar view of Order 26 Rule 2 of the now repealed rules of the Supreme Court in Davies v. Fay (1995) 1 QdR 509. The wording of the rule considered by His Honour and that of UCPR was identical. His Honour in his reasons referred to the judgment of Murphy J in Henderson v. Simon Engineering (Aust) Pty Ltd (1998) VR 867 at 870 regarding the Victorian rules. Murphy J considered that an offer to settle liability may be made thus enabling a plaintiff or defendant to protect themselves as to costs. His Honour said:

“If the issue of negligence and contributory negligence were issues taking up a good deal of time (as in an industrial accident they so often are) it appears to me that Rule 26.02(1) provides a vehicle by which a defendant or a plaintiff may protect himself as to costs for example by offering to pay or accept (as the case may be) a stated percentage of any damages that the tribunal may find that the plaintiff is entitled to receive and that should the offeree refuse such an offer and be found more responsible by the tribunal the offerer should be entitled to use an offer to compromise on this issue served on the other party on the issue of costs concerning that issue”.

1. I conclude that the defendants, in this case the second defendant, must be ordered to pay the plaintiff’s costs of the claim to which the offer to settle relates, calculated on an indemnity basis unless the defendants show another order for costs is appropriate in the circumstances.  The defendants do not do so.

1. Rule 698 UCPR is relevant.  Unless otherwise ordered the plaintiff’s recoverable costs must be assessed as if the proceeding had been started in the Magistrates Court. 

1. Damages were assessed in a sum which was within the Magistrates Court jurisdiction although at the upper end of it.   That the damages were close to the upper limit of the Magistrates Court jurisdiction is not standing alone, a sufficient reason to otherwise order.  In point of fact the factual strata of the plaintiff’s case supported significant contributory negligence on the part of the plaintiff.  The offer made on liability recognised this.

1. I order the second defendant pay the plaintiff’s costs to be assessed as if the proceeding had been started in the Magistrates Court.  I further order the plaintiff’s costs of the action on the issue of liability be calculated on the indemnity basis.