Rowan v Turnbull

[2000] QDC 292

DISTRICT COURT OF QUEENSLAND

CITATION:	Rowan v. Turnbull & Anor [2000] QDC 292
PARTIES:	JASON CLARK ROWAN Plaintiff And CRAIG TURNBULL First Defendant And ZURICH AUSTRALIAN GROUP LIMITED ACN 008 423 372 Second Defendant
FILE NO/S:	2146 of 1998
DIVISION:
PROCEEDING:
ORIGINATING
COURT:
DELIVERED ON:	14 September 2000
DELIVERED AT:	Brisbane
HEARING DATE:
JUDGE:	N.F McLauchlan Q.C. DCJ
ORDER: CATCHWORDS: COUNSEL: SOLICITORS:

1. This case concerns a road accident which occurred on 28 May 1997 on a street

which has been referred to indifferently in the evidence as either Hall Road or

Barbarella Drive, Springwood. (It appears that for much of its length the street is

Barbarella Drive and then at some point it becomes Hall Road.) The locus of the

accident is at a point on the roadway south of a roundabout by a distance of

approximately 100 yards. The plaintiff, who was born on 14 September 1971, was

riding his Suzuki motor cycle home from work. His motor cycle collided with the

Toyota van driven by the first defendant which was in the course of effecting a U- turn, so as to park on the opposite side of the roadway (the northbound lane) where

the first defendant was to carry out some "service" duties to a block of units.

1. The plaintiff said in evidence that he first saw the first defendant's vehicle when he

came out of the roundabout and was proceeding up the hill at a speed of 60 kph, and

that the first defendant's vehicle then appeared to be parked on the side of the road.

He next observed the vehicle at a distance of about 20 metres from it when it had

moved to a position approximately at right angles to the kerb and although he

applied his brakes, it was impossible to avoid an impact and his motor cycle

collided with the driver's side of the van. There was some damage done to the van

and considerably more damage done to the motor cycle, the damage indicating a

front-on collision on the part of the motor cycle. I am satisfied that the plaintiff's

motor cycle was on the correct side of the road at the point of impact.

1. The plaintiff suffered a loss of consciousness in the incident although he recalls

being in the ambulance on the way to the hospital. In giving an account of the

matter to a police officer on the same day at the hospital, he referred to the

defendant's vehicle as coming out of a side street on the left hand side of the

roadway.

1. The defendant says that he had slowed his vehicle to a speed of between 10 and 15

kph and indicated an intention to turn right. He then brought the vehicle briefly to a

halt to enable an on-coming car in the northbound lane to pass his vehicle, and he

then proceeded to execute a U-turn in the roadway. He did not check his rear vision

mirror for traffic approaching from behind before he did this. His vehicle, he said,

would have been motionless for a brief period whilst waiting for the on-coming motorist to pass him and his van was approximately 1 metre from the left hand kerb

of the roadway. Other evidence indicates that the roadway from kerb to kerb was a

distance of 10.2 metres, and that the first defendant's van was something less then 2

metres in width.

1. It follows that the vehicle driven by the first defendant was parked much closer to

the kerb than it was to the centre of the road. There was no centre line on the

roadway, and references in the evidence were to "an imaginary centre line".

1. When the plaintiff referred to the defendant's vehicle as having come from a side

road onto the roadway he was receiving pain relief, and no doubt was in a state of

some shock following the accident. Nevertheless, the other details he gave

concerning the lead up to the accident, for example with regard to the route which

he was travelling, were accurate. The plaintiff's subsequent visit to the scene would

have revealed to him that there was in fact no such street as he mentioned to the

police officer. I think there has been some degree of reconstruction in the plaintiff's

evidence, but without intentional dishonesty. In general, I thought the plaintiff to

be frank and open in his evidence.

1. I also thought the first defendant to be a truthful and candid witness. Amongst

other things, he said he could not say whether or not the brake light of his vehicle

was working on the day in question, so that although he brought his vehicle briefly

to a stop it does not follow that the plaintiff would have been in a position to

observe a brake light on the vehicle.

1. I think the likelihood is that the plaintiff when he left the roundabout to proceed up

the street, did not notice the first defendant's van. The van was probably stationary

in a position where it may have appeared to be parked, since it was significantly

closer to the kerb then it was to the "imaginary centre line" of the roadway. The

plaintiff nevertheless should have seen the indicator light on the van which,

according to the first defendant's evidence was put in operation before he stopped

the vehicle.

1. Even so, a person in the plaintiff's position who saw the indicator light might quite

reasonably have thought that it signified an intention on the part of the van driver to

pull out into the roadway and to proceed along it in the ordinary way. When a

driver in the position of the first defendant intends not to do that, but to turn across

the roadway for the purpose of proceeding in the opposite direction, he has a heavy

responsibility to ensure that the road behind him is clear of on-coming traffic which

might otherwise run into him. The distance involved in this case between the 2

vehicles before the collision is small,and would be covered in a matter of seconds

by the motor cycle, proceeding at the permitted speed of 60 kph. The position

might be otherwise if the first defendant had brought his vehicle to a stop at or near

the middle of the roadway and indicated his intention to turn into the other lane.

But on the evidence before me I think that a reasonable motorist would interpret the

first defendant's signal as being to join the traffic proceeding south from his

stationary position on the roadway, near the kerb. In the circumstances I consider

the first defendant to have been negligent, and indeed that conclusion is not

disputed.

1. It is, however, urged that the plaintiff was himself negligent in failing to see the

first defendant's vehicle and to take measure to avoid a collision with it. I agree that

the plaintiff should have seen the van and the indicator light signifying that the

vehicle was about to leave the kerb, and he should have proceeded with caution in

those circumstances but failed to do so. I would assess his contributory negligence

at 20%.

1. The plaintiff sustained injuries to his left leg and to both wrists. He underwent

internal fixation of a tibial fracture, and plaster cast immobilisation of both wrists.

Subsequently he experienced pain in both the left knee and right wrist and was

referred to Dr Phillip Duke an orthopaedic surgeon who carried out an arthroscopy

of his right wrist. He also sustained fractures of the left 4th and 5th metacarpals. He

was in hospital for about 2 weeks and off work for a further 3 months.

Subsequently there was a further operation to remove the nail from his tibia once

the fracture had united and he had a period for about 6 weeks off work following

this procedure. It appears that the operation on his left leg was a success but he has

been left with some residual problems in his knee. He suffers pain particularly in

cold weather and he says that the knee is unstable and he has difficulty in climbing

or placing pressure upon it. He also suffers some pain in his left ankle. His left

wrist seems to have basically recovered normal function but he suffers a loss of

movement in the right wrist, and pain. It is likely that he will have to have a further

operation to his right wrist ie., an arthrodesis.

1. According to Dr Dickinson, his present impairment of the right wrist is 15% of the

right upper limb, and if he were to have a satisfactory arthrodesis his impairment

would rise to 21% of the right upper limb. On the other hand, it is common ground between the doctors that an arthrodesis will significantly relieve the pain which the

plaintiff suffers so that there may be little or no overall increase in disability as a

result of the operation. It seems likely that the plaintiff will require an arthrodesis

of his right wrist within 5 to 10 years and the costs of the operation are put at

between $3,000 and $6,000.

1. Dr Pentis thinks that the problems with the plaintiff's knee amount to a 15% loss of

the efficient function of his left lower limb, whereas Dr Dickinson puts the figure at

7.5%. Dr Pentis however, is measuring disability or incapacity, whereas Dr

Dickinson is measuring limitation of movement. I think that looking at the broader

question of incapacity or disability the true figure is somewhere between the two.

In summary then the plaintiff has endured quite a deal of pain and suffering and is

left with pain and disability principally in his left knee and his right wrist. He is

left-handed and his left hand functions essentially normally.

1. There is agreement between the parties upon most of the heads of damage. For

example damages for pain, suffering and loss of amenities are agreed in the sum of

$35,000. Most other heads of damage are also agreed. The parties are divided on

the assessment of future economic loss and consequentially upon the amount to be

awarded for future occupational superannuation loss, and also upon an award for

future Griffiths v. Kerkemeyer damage, future surgery and future specials.

1. With respect to future economic loss, there are 2 components for consideration.

One is the loss directly associated with the arthrodesis operation which as a matter

of probability the plaintiff will have to undergo. The other is the loss of capacity to

undertake manual labour which the plaintiff has suffered as a result of his accident. The plaintiff has worked as a spray painter, I think for all his working life. He was

engaged in a spray painting job at the time of the accident which required a fair

degree of dexterity and suppleness to perform, and although he returned to this

work following the accident, he found it increasingly difficult because of the pain

and lack of dexterity associated with his knee and his right wrist. He then took up

his present employment which involves spray painting heavy machinery and which

involves some climbing but which is generally less physically demanding. He finds

this easier to do than his previous work and manages to carry out his tasks

satisfactorily. He left his previous employment as a matter of mutual agreement

with his then employer, both recognising that the work was too difficult for him in

his injured state. Obviously, if the plaintiff were to lose his present employment

and be thrown onto the open labour market he would be at a disadvantage because

of his injuries. There is no suggestion in the evidence that his knee will

dramatically improve or that any improvement is to be looked for with his right

wrist. In the latter respect the level of disability is likely to remain the same or to

increase after the projected arthrodesis.

1. I accept the submission on behalf of the defendant that it is appropriate to take the

approximate mid-point between the suggested times when it is expected that the

plaintiff will be recovering from surgery to his wrist, namely 7 years, and assume

that the plaintiff will be off work for 32 weeks. The loss is then to be calculated at

an assumed earning rate of $500 after tax per week which on the 5% tables deferred

for 7 years produces a sum of $11,376.

1. The issue of compensating the plaintiff for his disadvantage upon the open labour

market is something which in my view does not depend upon, or should not be calculated with respect to the projected arthrodesis of his right wrist. The plaintiff

currently suffers serious disability with his right wrist and the level of disability is

not likely to increase markedly as a result of the arthrodesis although there will be a

further loss of movement. I think that the plaintiff has suffered and will continue to

suffer a loss of capacity of about 20% as a manual worker on the open labour

market. Calculating that on the 5% tables for a period of 35 years produces a sum

of about $87,500. Whether or not the plaintiff will ever suffer such a loss depends

upon many contingencies and imponderables. He may well be satisfactorily

employed as a spray painter for the remainder of his working life, in which event

his loss of earning capacity will have no effect upon his actual earnings. On the

other hand he may find himself through unforeseen circumstances thrown upon the

labour market so that his loss of capacity will be translated into financial loss. I do

not think it is possible to make a measured calculation of the amount which should

be awarded in the circumstances. I think it is appropriate to award a global sum and

the amount which appears to be to be appropriate is the sum of $40,000.

Consequently the sum which I award for future economic loss is $51,376. Loss of

future superannuation contributions consequently amounts to $3,082.56, calculated

at 6% of the awarded future economic loss.

1. With respect to future Griffiths v. Kerkemeyer damages in connection with the

arthrodesis of the plaintiff's right wrist., I accept the defendant's submission that the

appropriate calculation produces a figure of $2,488.50. The same method of

calculation produces a figure of $4,266 with respect to future surgery and I allow

the sum of $500 with respect to future expenditure on pain killers.

1. Damages are thus assessed in the sum of $125,472.90 calculated as follows:-

Pain, suffering and loss of amenities $35,000.00

Interest thereon 1,050.00

Past economic loss 17,200.00

Interest thereon 1,333.00

Past occupational superannuation loss	587.00
Future economic loss	51,376.00
Future occupational superannuation loss	3,082.56
Past Griffiths v. Kerkemeyer	3,500.00
Future Griffiths v. Kerkemeyer	2,488.50
Special damages	5,064.84

Interest thereon 25.00

Future surgery	4,266.00
Future pharmaceuticals	500.00

$125,472.90

This amount must be reduced by 20% to reflect the plaintiff's contributory negligence.

In the result there will be judgment for the plaintiff in the sum of $100,378.32.