Simmonds v Day
[2005] QDC 12
•4 February 2005
DISTRICT COURT OF QUEENSLAND
CITATION:
Simmonds v Day & Anor [2005] QDC 012
PARTIES:
TIMOTHY DAVID SIMMONDS
plaintiffv
PETER DAY and FAI ALLIANZ INSURANCE LIMITED (ACN 000 122 850)
defendantsFILE NO/S:
BD228 of 2004
DIVISION:
Civil
PROCEEDING:
Motor vehicle accident personal injuries claim
ORIGINATING COURT:
Brisbane
DELIVERED ON:
4 February 2005
DELIVERED AT:
Brisbane
HEARING DATE:
27, 28 January 2005
JUDGE:
Robin QC DCJ
ORDER:
Claim dismissed
CATCHWORDS:
Motor Vehicle Accident At Signalised Intersection – plaintiff asserted he drove straight through as permitted by a green light – defendant proceeding in oncoming traffic executed right hand turn across plaintiff’s path, assertedly as permitted by a green arrow – traffic lights cycle (as agreed by partries) such that plaintiff faced a red light while that controlling the defendant’s turn was green or yellow and for 2.2 seconds thereafter – independent witnesses supported the defendant’s version – whether defendant’s “hesitation” amounted to negligence – claim dismissed – plaintiff’s damages assessed – where defendant in unusual circumstances offered to answer interrogatories, answers were admitted notwithstanding failure to seek leave under UCPR rr 229 and 230.
Evidence Act 1977
Cases cited:
Davies v Day (1995) 22 MVR 481
Derrick v Cheung [2001] HCA 48
Kingsford Smith Transport Pty Ltd v Dimopoulos, CA 40368/97, 13 July 1998, BC9807847
Lopresto v Golding (1957) 31 ALJ 851
Sibley v Kais (1967) 118 CLR 424, 427
South Australian Ambulance Transport Incorporated v Wahlheim (1948) 77 CLR 215
Thomson v Mumford (1990) 11 MVR 441, 448Wilson v Tomley [2004] QDC 037
COUNSEL:
Mr L Barnes for the plaintiff
Mr R Lynch for the defendantsSOLICITORS:
Carter Capner for the plaintiff
McInnes Wilson for the defendants.
The plaintiff, whose date of birth was 4 September 1978 was injured in a motor vehicle accident which occurred about 6 pm on 12 July 2001 at the intersection of Napper Road and Parkwood Boulevard in Arundel on the Gold Coast. The plaintiff was driving his Ford Cortina westbound along Napper Road towards the intersection; the defendant Mr Day was proceeding in his Ford Falcon motor vehicle along Napper Road from the west towards the intersection, where he turned right across the plaintiff’s intended path into Parkwood Boulevard. The damage to the plaintiff’s vehicle was to its front, predominantly on the passenger side, as shown by photographs in evidence. According to Mr Day’s statement admitted under s 92 of the Evidence Act 1977, the damage to his vehicle was on the passenger side, in the area of the doors.
The statement was admitted upon the plaintiff’s concession that work commitments of Mr Day required his departing for the Sudan shortly before the trial dates, which were fixed at a callover last year. It seemed to be impractical to attempt to have Mr Day made available in Sudan on the telephone for cross-examination. When he will return is uncertain. It is regrettable that the trial dates were accepted in the circumstances. The fault obviously lies in the defendants’ camp. They did not seek an adjournment. The plaintiff’s legal representatives took up an offer for Mr Day to be interrogated made in the unusual circumstances. Three of his answers were tendered by Mr Barnes in the plaintiff’s case as Ex 16. Mr Barnes was cautious about his tender given that the formalities of approaching the court for leave established by rr 229 and 230 of the UCPR had not been complied with. I felt not the slightest of difficulty about accepting the tender of the answers which became Ex 16. I think the whole point of the new rules was to change the former practice to protect litigants from being interrogated in the ordinary course. Where litigants agree to participate in the procedure, and with the result that material considered useful at a trial is produced, the court should be prepared to receive it.
Mr Day’s statement appears to have been signed by him on 6 October 2002; it is headed “taken this 30th day of September 2002”. What became Ex 17 is an expurgated version, produced by the parties’ joint efforts to exclude some material. The main point made is that the right hand turn was made while a green right turning arrow displayed in the traffic lights controlling the intersection was illuminated. According to the statement, when the author approached the intersection, the lights were red and there was a vehicle in front in the right turning lane into which Mr Day moved his vehicle “and activated my right side indicator.” Then, “the green arrow activated. The vehicle that was in front of me commenced to turn into the intersection and into Parkwood Boulevard. I followed behind.” The statement says:
“I distinctly recall not hearing the sound of a horn from the vehicle that hit me, nor any flash of headlights indicating its presence on the roadway. As I have said, the first time I was aware of the vehicle on the roadway was as I heard the screech of brakes.”
The trial was conducted very much on the basis that the central issue was compliance or otherwise by the two drivers with the manoeuvres permitted and/or forbidden by the traffic lights. In those circumstances, it would be unfair to attach any weight to Mr Day’s assertion that at the time of the collision and/or relevant times immediately preceding it, he had the benefit of a green arrow. Otherwise, I can see no reason not to accept those parts of Ex 17 specifically noted above; I will also accept that it correctly states the author’s date of birth as 20 June 1961.
Both Napper Road and Parkwood Boulevard accommodate two lanes of through traffic moving in each direction. Extra lanes are provided at the intersection, so that, in Napper Road in particular, at the lights, there is an additional lane for left-turning traffic (on the kerbside) and (on the other side) an additional lane for right-turning traffic. In his opening, at p 14 of the transcript, Mr Barnes outlined an agreement reached by the parties in relation to the workings of the traffic lights at the time in question:
“MR BARNES: Well, for the purpose of this, we agree that this is the sequence, your Honour – perhaps I could put it that way – that traffic on through basis for Napper road from both directions and also turning right all have a red light if there is Parkwood Boulevard traffic meeting. After that, a green arrow comes on – we’re not concerned with the direction of travel from the plaintiff but it probably comes on too, we don’t know. It’s irrelevant, your Honour.
The green arrow comes on for traffic in Napper Road turning to the right into Parkwood from the opposite-----
HIS HONOUR: Yes.
MR BARNES: ---- that’s the defendant’s direction of travel. It’s agreed that if there is one car at the lights, the green arrow will be on for six seconds. If in that six seconds a second car passes onto the intersection and goes over a trip line which is immediately before the start of the intersection, then an additional 2.5 seconds of green arrow will remain on providing that car has gone through in the first six seconds.
There is then a four second amber arrow and then a 2.2 second period when vehicles from – every vehicle from both sides of Napper Road have the red light before the green circle comes on for Napper Road through traffic in both directions.”
The plaintiff Mr Simmonds gave his version at p 19 ff. He was driving from his parents’ place at Labrador to his own residence in Tiger Drive, Arundel in the kerbside lane, intending to proceed straight through the intersection. He said he slowed down from his speed of 60 km per hour “preparing for what’s at the intersection”:
“Now, you started to come down the hill. What did you see in terms of lights? Well, as you came down the hill what did you see in terms of the lights in front of you?-- They were green.
Can you tell us approximately how far from the intersection you were when you saw them green?-- About 100 metres. Probably more.
All right. What did you do then?-- I started accelerating to go through the intersection.
As you came towards the intersection did you see something - were there any vehicles in front of you on Napper Road, first of all, prior to the intersection?-- No, there wasn't. The only thing I seen was a - a ute going right up Parkwood Boulevard.
From the opposite direction?-- Yeah. And I only sort of caught the tail end of it.
Okay. Now, did you see any vehicles in front of you travelling in the same direction-----?-- No.
-----along Napper Road?-- No.
…
Okay. How far away from the intersection were you when you saw this ute turn to the right in front of you?-- I was coming over the crest.
Right?-- So just a bit before the top of the crest.
Okay. You saw a ute turn from the right turn lane from the opposite direction in Napper Road-----?-- Yes.
-----into Parkwood Boulevard?-- Yes.
Now, did you continue driving towards the intersection?-- Yes.
And as you got to the intersection, or got close to the intersection what colour were the lights facing you?-- Green.
What happened then? Perhaps I could just - just withdraw that question. Had you seen vehicles on the other side of Napper Road?-- Yes.
What lanes were they in?-- All lanes, I think.
Okay. And what were they doing?-- They were moving off from the lights.
That was for through traffic, was it?-- Yes.
What happened as you got close to the intersection?-- I kept going - oh, he sort of come out a bit and sort of stopped.
Who's "he"?-- Mr Day.
What was he driving?-- A green AU Falcon.
And what lane was he in?-- He was in the right hand turning lane opposite-----
This is in Napper Road opposite direction to you?-- Opposite me, yes.
When you first saw him was he stationary or moving or what?-- He was moving and then he became stationary. He sort of jutted out into the intersection and stopped there.
When you say "into the intersection", how far into the intersection?-- He was-----
Just into the intersection or what?-- Yeah, he was just - his front wheels were sort of about two metres over his white line.
Okay. Had he turned on to your side of the road at all or not?-- Not yet, no.
Right. But he'd just gone past the-----?-- The white line, yeah.
The white line and he'd stopped and what happened then?-- I assumed he was - he'd realised I was coming and had the green light so he was giving way for me and so I just kept on going through the intersection and he just pulled out in front of me.
So he's turned right across you?-- Across my path, yes.
Approximately how far away from the intersection were you when you saw him suddenly turn right in front of you?-- About 50 metres.
And that's - that's quite a distance; do you have any idea how long this room is?-- Oh, it may only be 30 metres then.
Can you give us an estimate based on the length of this room, say, how far away he was?-- Oh, about two of these rooms.
Okay. What sort of speed were you doing at that stage?-- I was doing about 40 but I was accelerating up to go through the intersection.
Okay. What sort of speed was the Falcon doing?-- I can't be certain but he was accelerating to get past me - like, in front of me, so-----
When you saw him accelerate in front of you what did you do?-- I immediately hit the brakes.
And what effect did that have on your car?-- I just skidded straight into him.”
If the plaintiff had the benefit of the green “straight through” light for anything like the time he described, Mr Day could not possibly have been taking advantage of a green arrow in executing his turn, and could hardly escape a finding of negligence in turning across the path of oncoming traffic. However, nothing else in the evidence supports the plaintiff’s assertion and (assuming the traffic lights operated conformably with the agreement) there is much to contradict it, even setting aside what Mr Day claimed. Ms Hubber was called in the plaintiff’s case. She claimed some vicarious expertise as the partner of an experienced tow truck operator. She was driving in her own car which was proceeding eastbound on Napper Road in the through lane further from the kerb, where it had to pull up for a red light. Her evidence in chief at p 70 includes the following:
“What was the colour of the right-turning light-----?-- It was-----
-----the traffic turning right from the right-turn lane into-----?-- Yellow proceeding to red. I can't recall if it actually was a red arrow or it was a blank but it was you weren't supposed to turn right.I'm sorry, no. Just take you back a little bit. When you first stopped-----?-- Yes.
-----what was the arrow on?-- Green.
Okay. So you stopped then the green arrow has come on?-- No, it was already on green when we slowed down to stop.
When you slowed down to stop-----?-- Yes, and then it went yellow and then it went to red or-----
Okay. Did you see a vehicle travel through to go right?-- There was a vehicle that was very hesitant about going right.
What sort of car was it?-- A Ford.
Right. Do you remember the colour of it?-- It was a blue or a greeny blue. It was like a metallic colour.
Was that the car that was involved in the accident?-- Yes.
Now, you had the red light for traffic going straight ahead. Now, where did this car come from?-- From behind to turn right and he was - he hesitated twice before going through the intersection.
Right. When you say he hesitated twice, what do you mean by that?-- Well, when the light had gone from green to yellow, that's basically to tell you to slow down to stop - prepare to stop.
Right?-- And he started hesitating - was thinking whether he should stop or go.
MR LYNCH: I object.
MR BARNES: Don't tell us what he was thinking, just tell us what you saw?-- Okay. He sort of went, slowed down, went again and accelerated through the intersection.
Okay. So you're saying there were two hesitations as such?-- Yes.
When you say hesitations, had his car stopped or just go close to a stop?-- Go close to a stop.
Now, the first time that happened, was he still in the right turning lane?-- Yes.
And what was the colour of the light at that stage facing the turning-----?-- Yellow.
So he hesitated, got close to stop; what happened then?-- It went red and then - it went yellow, he hesitated, he sort of picked up a little bit of speed again, hesitated, then accelerated through and it was on the red when he went through.
Okay. So the turning arrow was on red when he moved it through?-- When he went through the intersection, it was on red.
Okay. Now, what happened then? What did you see?-- A Cortina was coming over the hill. I'd actually seen it on the lower rise of the hill and he had the green to go straight ahead and as the cars come to turn right, it's just banged.”
She was “a hundred and ten per cent certain there was a red arrow” at the time Mr Day “proceeded into the intersection”. She was convinced Mr Day bore the blame for the collision, telling Mr Lynch in the course of his cross-examination at p 73:
“I knew when he was hesitating, he wasn't going to make it. That's what I was basically watching, thinking, "You've just done something wrong. There's going to be an accident here." Being a tow-truck driver's wife, you see it all the time.”
Further on:
“But when you stopped, I'm not talking about your light, I'm talking about the light for turning right. It was already green, the green arrow?-- Yes, when we came up to the lights, it was green.
Okay. And you say that you saw the blue Ford - did it - it commenced - it was commencing its turn-----?-- On a yellow.
Yes?-- Yes.
Did - at any stage, from the time it commenced its turn, until the time of the collision, come to a complete stop?-- No.
Right. It just slowed a little-----?-- It was very hesitant. It just - yeah - didn't know whether it - didn't know what to do.
Okay?-- It was hesitant, and then it went through - accelerated through the lights, and the accident just happened.”
Given the agreement about operation of the traffic lights, it seems impossible (unless they operated quite eccentrically) that the plaintiff could have had any green light facing him, unless it was a right-turning arrow; he ought to have been stopped at the intersection by a red light. If he had to take off from a stopped position into the intersection, there is no justification for his doing so until that can be done safely, that is, when oncoming traffic executing a right-hand turn across his intended line of travel has cleared. Another theoretical scenario is that the plaintiff anticipated the change of the light facing him to green. Those actions are something which in my opinion cannot be justified. It is common experience that immediate advantage often cannot be taken of a green light because some opposing line of traffic has not cleared. It hardly matters, given the dictates of safety, if that opposing traffic has failed to comply with the requirement to stop on a red or yellow light.
The defendants were able to go one better than the plaintiff, and produce two eyewitnesses to the collision with a completely different judgment about where the blame for it lay. These were Mrs Lynn Radnedge and her daughter-in-law Thelma Radnedge, who was the driver of a Commodore in which they were intent on proceeding easterly along Napper Road through the intersection, in the kerbside through lane; they had to stop for a red light, and chanced to observe what happened when the “Hilux or twin-cab ute” pulled up so suddenly in the right turning lane, across from them, that a dog riding in the rear seat was catapulted forwards off it. Both women were adamant that Mr Day commenced his turn with the benefit of a green arrow. They may have discussed the incident over the years more frequently than Mrs Radnedge Senior (a nurse, who I thought was an impressive witness) cared to acknowledge, but it is clear they were definite about their observations from the outset, when they made their details available to Mr Day and (I think) police. They did not know Mr Day. There is no reason to think that the disapproval of one or both of them of aspects of Mr Simmonds’ conduct after the collision led them to offer and give dishonest sworn evidence against him.
I accept that eyewitnesses’ accounts of exciting events may well differ widely, even when honestly given. The limitations of human observation and recall must be acknowledged. One would not be confident of their (or the plaintiff’s) estimates of times and distances. I think all three women gave their evidence honestly. If it be thought that the differences are significant, I would prefer the evidence of the Radnedges. Ms Hubber (see p 73 ff) appears to have been much less observant from the point of view of noting other traffic, and the movements of it; further, it appears that her recollection at trial (as to hers being the leading vehicle at the traffic lights) is inconsistent with contents of a statement she signed on 14 August 2002. Criticisms are open of the defendants’ independent witnesses, too. Thus, the younger Mrs Radnedge (whose evidence Mr Lynch appeared to prefer, over her mother-in-law’s) said the plaintiff’s vehicle was white, when it was in fact grey. Experience leads one to expect that the more wide ranging the account of an incident that happened years before embarked on by a witness, the more imperfections will be revealed in his or her recollection.
This is a case in which the plaintiff Mr Simmonds bear the onus of proof, in the sense that unless he overcomes the hurdle of establishing negligence against Mr Day on the balance of probabilities, his claim gets nowhere. If he surmounts that hurdle, there is an issue of the quality of his own driving and whether it constituted contributory negligence (on that issue, the defendants would bear the onus). Mr Barnes, for the plaintiff, conceded that on the evidence there was a basis for a finding of contributory negligence against his client: transcript pp 164-65.
Reference was made to decided cases. Unsurprisingly, Counsel had little difficulty unearthing instances of outcomes where similar accident scenarios were assessed in different ways by courts. Mr Lynch referred to Davies v Day (1995) 22 MVR 481, whose head note is:
“The plaintiff approached an intersection controlled by traffic lights intending to turn right. The lights were green as she moved into the intersection and waited until the traffic coming in the opposite direction had passed through. When the lights turned to amber the defendant approached from the opposite direction. He slowed. The plaintiff commenced to make the right hand turn. The defendant did not stop but came through the intersection and collided with the plaintiff. The trial judge held the defendant to be solely responsible. The defendant appealed on the issue of contributory negligence.
Held, dismissing the appeal:
(i)it was permissible for the plaintiff to enter the intersection at the time in order to turn right.
(ii)the plaintiff was entitled to rely on the lights to complete the turn.
(iii)in the circumstances it was reasonable for the plaintiff to have expected that the defendant would have brought his vehicle to a halt to comply with the red light.
(iv)the defendant gave the appearance that he was going to stop and the plaintiff was entitled to rely on that fact.
(v)if the plaintiff had not completed her turn she would have blocked the intersection; her movement was natural, proper and reasonable.”
Mr Barnes referred to Wilson v Tomley [2004] QDC 037 (subject of a failed plaintiff’s appeal at [2004] QCA 332), where the plaintiff, who was found not to have had the green right turning arrow he claimed, but rather a green light authorising him to proceed straight ahead (as did the oncoming traffic, including the defendant’s vehicle) was held 75% responsible for the collision; the defendant’s 25% responsibility was based on his seeing the plaintiff turn across his path, but failing to keep a proper lookout and a break in a timely way once he realised traffic was turning across his path. At para [8] of his reasons the judge cited a statement of principle from Thomson v Mumford (1990) 11 MVR 441, 448:
“In my opinion a motorist who has a traffic light in his favour is prima facie entitled to act in conformity with that light. However, if for example he has by observing the conduct of the other motorist, actual notice that that motorist is likely not to act in conformity with his obligations under the law, or if he had with the exercise of reasonable care the opportunity to observe such conduct in time to avoid the risk created by the conduct of the other motorist but disabled himself from doing so due to his own defective lookout he will himself be negligent.”
Reference was also made to the well known decision of five judges of the High Court in Sibley v Kais (1967) 118 CLR 424, 427, where it was said:
“These regulations in nominating the vehicle which has another vehicle on its right as the give way vehicle are undoubtedly salutary and their breach is deservedly marked with criminal penalties. But they are not definitive of the respective duties of the drivers of such vehicles to each other or in respect of themselves : nor is the breach of such regulations conclusive as to the performance of the duty owed to one another or in respect of themselves. The common-law duty to act reasonably in all the circumstances is paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations; for there is no general rule that in all circumstances a driver can rely upon the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case.
Therefore, it is, in our opinion, rightly said that the “ ‘right hand rule’ is not the be all and end all in relation to questions of civil responsibility”. The obligation of each driver of two vehicles approaching an intersection is to take reasonable care. What amounts to “reasonable care” is, of course, a question of fact but to our mind, generally speaking, reasonable care requires each driver as he approaches the intersection to have his vehicle so far in hand that he can bring his vehicle to a halt or otherwise avoid an impact, should he find another vehicle approaching from his right or from his left in such a fashion that, if both vehicles continue, a collision may reasonably be expected.”
Two earlier High Court decisions regarding the “right of way” rule were noted. In the South Australian Ambulance Transport Incorporated v Wahlheim (1948) 77 CLR 215, Rich J said at 424 that:
“The customary “rules of the road” and traffic regulations are perhaps material matters to be considered in accident cases, but they cannot be regarded as determining factors.”
and Dixon J (McTiernan J agreeing) said at 228-29:
“I cannot agree in the view that s.131(1) relieved the plaintiff of responsibility for exercising a degree of vigilance with reference to possible traffic emerging on his left. No doubt in determining whether a lack of vigilance in this respect amounts to negligence it is proper to take into account the effect of that section. For under its provisions a vehicle, unless it is a fire engine or the like or a police car or an ambulance, must as it comes to an intersection give way to a vehicle on its right hand. But it does not follow that a driver of what may be called the right-hand vehicle always behaves reasonably in assuming without looking that in view of the common behaviour of motorists in consequence of this provision he may safely drive over the intersection. In any given case that must depend upon the circumstances. Whether a particular act or omission is unreasonable and amounts to contributory negligence will doubtless often depend upon the rules, conventional or statutory, which other traffic may safely be expected to observe. What traffic uniformly does may be dictated by statute; but whether conduct arising from reliance on the expectation that all traffic will so behave is reasonable must depend less upon the state of the law than upon the practice which is in fact set up by the law. For laws may speak in vain.”
The next case was Lopresto v Golding (1957) 31 ALJ 851, in which the court said at 852:
“Obviously the provision constitutes a fundamental rule in the regulation of traffic on the roads of the State and proof, in an action for negligence, that a defendant has failed to observe its requirements must, in appropriate cases, constitute more or less cogent evidence in favour of a plaintiff. But it does not follow that such proof, in any particular case, will conclude the issue of liability wholly against the defendant or wholly in favour of the plaintiff. As was observed in Henwood v The Municipal Tramways Trust (S.A. (1938) (60 CLR 438 at 461): “When negligence as a cause of action is in question, breach of a legislative provision requiring a specific precaution amounts to evidence of want of reasonable care” but “the fact of the breach does not of itself … raise a presumption that the accident was attributable to the breach … or justify the inference that it was caused by the breach” (Inglis v NSW Fresh Food and Ice Co Ltd (1944) 44 SR (NSW) 87 at 96. Clearly the question of liability must be resolved upon a consideration of the whole of the relevant evidence. Indeed, to hold otherwise would be to say, where it is seen that, in the proved circumstances, a defendant was subject to a statutory duty to take a specific precaution, that the plaintiff was absolved from any duty of care either for his own safety or for that of the defendant. This is not the law and we do not think that counsel for the appellant really pressed his submission so far.
The rule formulated by s131(1) has, however, such a direct and practical application to the control of traffic that it is readily apparent that a failure to observe its provisions may well result in a collision between approaching vehicles. Accordingly, if, in an action for damages for negligence arising out of the collision of two vehicles at an intersection or junction, it be shown that the defendant committed such a breach, and nothing else appears, it would be a simple matter to conclude that the collision had resulted from the defendant’s negligence. But rarely does nothing else appear in such cases.”
In the present context, the relevant traffic regulations (never precisely identified) are those requiring obedience to traffic lights. Compliance or otherwise by Mr Simmonds and Mr Day is determinative of nothing. However, Mr Simmonds’ assertion that he proceeded with the authority of a green light is unsustainable, being contradicted by the evidence of the independent witnesses, when effect is given to the parties’ agreement about the operation of the traffic lights. Mr Day, on the other hand, was protected by a green arrow in respect of the movements of his vehicle, on the Radnedges’ evidence, which, on balance, I think is correct. The plaintiff has failed to make out his claim to the contrary. Even if Ms Hubber’s evidence is preferred, all that is shown against Mr Day is that he took advantage of a yellow light and proceeded, when the rules of the road presumably required him to stop. I think it is the case that the practice of drivers, on Gold Coast roads in particular, and in the case of such thoroughfares as are encountered here, is to exploit to the maximum (rather than limit) opportunities to proceed at signalised intersections. Taking into account the considerations referred to above, and accepting that a favourable turning arrow on its own does not protect him against a finding of negligence, I think a driver in Mr Day’s position is justified in taking comfort in the thought that proceeding in a line of right-turning traffic in accordance with movement expressly permitted by the traffic lights, he need not anticipate conflicting movements by opposing traffic. There are exceptional cases, as where an emergency vehicle such as an ambulance or fire engine is proceeding giving appropriate warnings: but that this is not that kind of case.
Mr Lynch’s point about the mischief that would ensue “if motorists were to drive in modern day traffic with the expectation that something could happen just around every corner, traffic would grind to a halt” (see p 173) may not have been “endorsed” by the High Court in Derrick v Cheung [2001] HCA 48 as distinctly as he suggested. However, the court did endorse the view of a dissenting judge in the New South Wales Court of Appeal that:
“The facts of the present case were different from those in Stocks v Baldwin for there was no particular perceivable risk which the appellant should have taken into account but did not. She drove with other cars at a modest speed, 45-50 km per hour, keeping an appropriate distance between her vehicle and the vehicle in front and keeping a proper lookout. The appellant's driving was appropriate in the circumstances. For the appellant to keep up with the general flow of the traffic, when the traffic was travelling at a modest speed, well under the speed limit, and when there was no particular danger observable, was both a reasonable and a proper response to the traffic conditions on the day. For the appellant to have dawdled along Victoria Avenue when no particular danger was apparent would not have been appropriate for it could have caused disruption.”
and went on at para 13:
“The appeal to this Court must be upheld. There was no basis upon which any finding of negligence on the part of the appellant could be made. That the facts of the case are tragic, and the collision a parent's worst nightmare, as the trial judge accurately described them, did not relieve his Honour of his obligation to determine the issues according to law: in this case, by not finding an absence of care in circumstances in which reasonable care was, as Davies AJA correctly held, in fact being exercised. Even if the inference which the trial judge drew, that if the appellant's speed had been slower by a few kilometres per hour she would have been able to avoid the collision, was more than mere speculation, it is still not an inference upon which a finding of negligence could be based. Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care. To offer, as the majority in the Court of Appeal did, its consolation that the appellant does not bear any moral, as distinct from legal, responsibility for what occurred is to obscure that issue.”
In my judgment, the plaintiff here fails to show any breach by Mr Day of the duty to exercise reasonable care. That opinion prevails notwithstanding that Mr Day did not slow down or take any other action to avoid Mr Simmonds’ vehicle, indeed, had failed to see it. Proceeding as he was, Mr Day should not be expected to have kept a lookout for vehicles where the plaintiff’s was, in the absence of some special circumstance. The court is conscious, too, of the hesitation said to have been exhibited in the way in which Mr Day proceeded in his Ford Falcon. Ms Hubber’s version is corroborated by Mrs Radnedge Senior (p 109) and her daughter-in-law (p 134), although they speak only of a single “slight” or “momentary” hesitation. The Falcon was already on the intersection when this occurred. It was a justifiable thing for Mr Day to do to clear the intersection. I accept the view expressed at p 134 that the collision would have happened whether, at the point of hesitation, Mr Day had either stopped or accelerated and advanced.
It is clear that if, contrary to the court’s view, Mr Day was negligent, the lion’s share of the blame for the collision rests with the plaintiff. Whether or not he observed some other green light as he proceeded through the last 100 metres or so down the hill to the intersection, he was mistaken in thinking that for a significant distance and time he had faced a green light authorising him to enter the intersection. He was aware of oncoming traffic executing a right-hand turn across his intended path of travel, and, indeed, of Mr Day’s vehicle, preceded by the one turning before him. He ought to have allowed the turning traffic to clear before entering the intersection and (if it matters) allowed for the possibility that that stream of traffic might continue to flow longer than the traffic lights permitted. He ought not, in the circumstances, to have drawn any conclusions about the significance of any appearance of hesitation on Mr Day’s part.
I think it would be unsound to treat hesitation of the kind encountered here as amounting to negligence. The problem about hesitation is that it may be misconstrued by other road users, who may take from it that the hesitant road user is not going to proceed, but rather, leave the roadway clear. I think that anyone who takes this from another’s apparent hesitation takes a serious risk, which may well amount to negligence. Hesitation is not comparable with some positive signal or gesture of the kind often given to indicate to another road user that he or she is being invited to take precedence and proceed. Hesitation may bespeak caution (possibly, undue caution), unfamiliarity with the prevailing conditions, indecision and the like, rather than a determination to stop and/or remain stationary. An illustration of hesitation not amount to (contributory) negligence may be found in the New South Wales Court of Appeal’s decision in Kingsford Smith Transport Pty Ltd v Dimopoulos, CA 40368/97, 13 July 1998, BC9807847. The plaintiff was crossing Botany Road in Sydney. As Meagher JA put it, “she got as far as halfway and on the lines on the halfway point, where she stood for a while and seemed to hesitate.” The defendant in his car 80-100 metres back saw that she seemed to be hesitant about whether to go forward or not. The trial judge found that the defendant driver presumed that she had seen his approaching vehicle and Meagher JA said:
“He could have slowed down if he had wished in case she overcame her hesitation and continued to cross. He did slow down to some extent but not sufficiently to permit her to complete that manoeuvre … she decided that she would cross the other half of the road and had almost done so when the driver hit her … .
The defendant driver drove in such a manner as to be incapable of avoiding a collision which he could reasonably foresee might occur. That finding having been made, nothing else seems to me capable of dislodging it … .
Once it is clear the defendant could have avoided a collision which he could have foreseen, if it does not really matter what was in the plaintiff’s mind. … on the question of liability, in my view, the appeal should fail.
On the question of contributory negligence … once liability is found in the manner her Honour did find it, it seems to me that her decision on contributory negligence likewise cannot be disturbed.”
Shepherd AJA said:
“She stood for a time apparently on the centre lines, there was no median strip on the road, and hesitated. Her hesitation was plainly apparent, so it seems to me on the evidence of the appellant of those circumstances I think he was negligent because he failed to make allowances for the fact that she might do as indeed she did and reasonable care on his part indicated that he should have stopped or brought his vehicle almost to a stop to give her an adequate opportunity of crossing the road.”
There are a couple of Canadian cases in which pedestrians who similarly “hesitated”, before going ahead, to their great cost, were found contributorily negligent – 30%, in Sidney v Higo [1977] 1 WWR 749, 40% in Oliver v Penney (1975) 21 NSR (2d) 271. However, the hesitation was not the plaintiff’s failing, so much as presumed awareness drivers would have difficulty seeing him in the former, and “crossing a main highway and (after seeing) the approaching vehicles” in the latter.
Chien v Macias 2002 WL 443255 (Cal.App. 2 Dist) concerned a collision between vehicles very similar to the present one. The plaintiff in the turning vehicle, which “hesitated”, sued the driver of the other, but not her own driver, who was drunk, and at trial admitted full responsibility for the accident. She failed at trial and on appeal to establish negligence in the defendant. There is no mention of traffic lights at the intersection. Marks v Jenkins (2004) 88750 2d 558 concerned a defendant who “hesitated” in a manoeuvre in a hospital car park on account of uncertainty about what movement a truck was about to make. There was dispute as to whether a collision with the plaintiff’s vehicle (in the sense of contact of vehicles) happened. The issue was whether the unsuccessful plaintiff (and/or her granddaughter) suffered injury in the accident – as was the issue in Touchard v Slemco Electric Foundation (2000) 769 So 2d 1200, where a hesitant (and unsuccessful) plaintiff was “rear-ended”. The last North American reference regarding hesitant road users kindly obtained by Library staff, The People v David Reed (2004) 5 Misc 3rd 1032 (A), 2004 WL 2954905 (N.Y. Sup), concerns interlocutory determinations in a prosecution for driving while intoxicated in which the defendant hit a pedestrian who hesitated about crossing a street. None of these decisions takes the present issue any further.
Here, the plaintiff had seen Mr Day’s vehicle, which he appreciated was following another vehicle executing a right-hand turn (presumably permitted by the traffic lights). Any appearance of hesitation, once Mr Day had got on to the intersection, could not reasonably be construed as an invitation to the plaintiff to proceed. This is all quite independent of the plaintiff’s, having faced a red light instructing him not to proceed (notwithstanding his assertions to the contrary).
Quantum
The court must assess the quantum of the plaintiff’s damages, against the possibility that the findings regarding liability are changed. Mr Simmonds suffered two fractures in his left hand. It was not immediately obvious that this had happened, but he was alerted by inability to operate a fire extinguisher which he obtained from a nearby service station at the scene of the accident when his vehicle was threatening to catch fire. The fractures were not diagnosed at a 24 hour Medical Centre Mr Simmonds went to. Within hours, pain (which seems to have been aggravated at the 24 hour Centre) drove him to the Gold Coast Hospital, where he remained as an inpatient for four days. During that time there was open reduction and internal fixation (by three screws each) of fractures detected on the dorsum of the middle metacarpal and of the proximal phalanx of the index finger. Dr White, an orthopaedic surgeon saw Mr Simmonds on 21 January 2002, and again on 18 January 2005. He assessed a 10% impairment of the left arm on both occasions, although noting that Mr Simmonds said his left hand does “feel a bit better”; the index finger becomes “real sore” on occasions, particularly in the colder weather and “sensation of pins and needles/numbness was still affecting the ring finger”; on account of pain and discomfort when he tries to play on the guitar, Mr Simmonds has given up that activity. He is anxious about exposing the index finger to further pain or damage; he is reluctant to use it to steady a nail for hammering, for example. Reporting on the first examination, Dr White wrote:
“On the day of his attendance, I would have considered Mr Simmonds unfit for work involving heavy physical labour, maintenance of the head and neck in fixed positions for extended periods of time, climbing, squatting or work on rough ground.”
The report on the recent examination contains an identical sentence, except that “heavy” becomes “significant”. Dr White noted altered tactile appreciation in the area of the scars on the left hand, whose appearance (or comments about which from others) apparently caused the plaintiff some concern over the years, although they are not unsightly photographic evidence depicts them accurately. As I read Dr White’s reports, it is injuries to the cervical spine (assessed as 5%-10% of the whole person originally, now 5%) and to the right knee which impair Mr Simmonds’ ability to work.
Concentrating on the hand, for the moment, Dr Millroy, whose speciality is surgery of the hand saw Mr Simmonds at the behest of the defendants on 14 November 2002; he who noted in his report of that day:
“He complains of some pain over the proximal phalanx region of the left index finger. He notices decreased range of movement of this digit especially at the proximal interphalangeal joint which is not improving. If he grips firmly he notices pain at the site of the fracture in the left middle metacarpal bone. The left middle metacarpo phalangeal joint feels tight to fully flex. He also complaints of numbness on the radial side of the left ring finger which has persisted since the time of the injury and operation. This causes very little decrease in function.”
and gave the following opinion:
“This patient suffered severe injuries of his left index and middle fingers in a car accident on 12 July 2001. Appropriate treatment has been given. He now has a reasonable result. No further operative treatment of the injury or their sequela is indicated except that a minor operation could be performed to remove the long screw in the left index finger if Mr Simmonds thought that it was causing enough discomfort. This would involve a trip to the day surgery theatre. Total operative and hospital costs may amount to $2,000. Otherwise no further treatment should be required.
The condition of the left hand is now stable and stationary. Further deterioration is unlikely. In my opinion he should have no restriction on his activities of daily living, recreational and sporing pursuits and any job activity he wishes. In my opinion he could resume his former occupation if he wished.
There is no evidence of any pre-existing condition contributing to his disability. In my opinion according to the Guides to the Evaluation of permanent Impairment Fifth Edition, American Medical Association, there is a permanent impairment of 5% of the left upper limb due to this injury. This impairment is mainly due to the restricted movement of the left index finger and diminished sensation on the radial aspect of the ring finger.”
It seems Mr Simmonds persisted with the requisite hand therapy and exercises. Dr Millroy was asked to review his opinion, in light of Dr White’s of 20 January 2005; he adhered to his expressed view, adding:
“Also I note on reviewing the records, that the report of Dr. D. Maclean, Orthopaedic Registrar of the Gold Coast Hospital dated the 20th August, 2002 indicates that when recently reviewed on the 9th July, 2002 twelve months after the accident he reported continuing mild stiffness of the index finger and was able to achieve palm grip to within ½cm (5mms) of the palm. There is no real reason for the deterioration in the range of movement demonstrated to me when I examined him on the 14th November, 2002 when the tip of the finger would only flex to within 3cms of the distal palmar crease. Therefore I think the benefit of the doubt has been given in my assessment of permanent impairment of the left upper limb of 5%. 5% of the left upper limb is equivalent to 3% of the whole person (Table 16-3).”
I accept the plaintiff’s evidence that in the employment he had in his parents’ business Broadwater Boat Upholstery (the scope of which was rather wider than the name indicates) he needed a good left hand as well as a good right hand (he is right handed), for purposes of holding/stretching all manner of coverings so they could be properly fixed, for steadying himself while working on boats bobbing about in the marina, and the like. Dr Millroy was plainly cognisant of (and accepted) Mr Simmonds’ complaints of pain, but persisted in his assessment, presumably taking the approach that the plaintiff could work through a certain amount of pain and/or discomfort. He was careful to confine himself to the hand aspect. I accept that approach. The hand aspect is but part of a more complicated picture.
It is concerning that the neck and knee injuries Mr Simmonds complains of, although they feature in the medico-legal reports, generally speaking have not been drawn to the attention of the medical profession, or been the subject of diagnosis and/or treatment in the way one would ordinarily expect. There is no mention of them in the Gold Coast Hospital records which, understandably, focus on the serious injury to the left hand. Dr White reported on the other injuries, which were associated with headaches, stiffness (particularly over the right side, “lateral to the base”) and aggravation by prolonged sitting (for the knee - which “locks and at such times straightens with a click … associated with pain in the anterior aspect and swelling” – as well as for the neck). On examination in January 2002 Dr White observed:
“Cervical spine. There was no spasm. He appeared tender in the mid-line from C4 to C6. With forward flexion he could place the chin to within 2cms of the chest wall. All other movements appeared minimally reduced but associated with complaints of pain.
Right knee. The quadriceps appeared adequate. Tenderness was reported behind the patella and over the medial joint line. There was a normal range of movement associated with moderate retropatellar crepitations. Signs of medial meniscal derangement were positive. The ligaments appeared symmetrical.”
Concerningly, three years later, in respect of the neck Dr White reported:
“Left rotation and lateral flexion appeared reduced by about one-quarter. Rotation and lateral flexion to the right was normal.”
and, as regards the right knee, “the quadriceps was reduced in bulk.” The defendants’ orthopaedic expert Dr Morris was unimpressed by that new observation, in the absence of some measurement, which was not undertaken by Dr White. However, Dr Morris found the “crepitations”. It is plain there is something wrong with Mr Simmonds’ knee. It has not been shown or suggested that this preceded the accident. Dr White has diagnosed “significant tearing of the medial meniscus” which, as expert evidence on the other side confirms, “requires arthroscopic surgery for both accurate diagnosis and treatment.” He says that “appropriate assessment of any permanent impairment should take place 6-12 months following surgery, depending on stabilisation of symptoms.” At page 84 of the transcript, Mr Barnes invited Dr White to speculate:
“Doctor, are you able to assess the plaintiff’s disability as best you can without the results of an arthroscopy?-- Well, yes, but it’s really an unjustified guess, I think you might say. A fair bit depends on the findings of the arthroscopy. And just to deal with these crepitations for the moment, if there is marked and full thickness, tearing of the articular cartilage of this joint, that is a sign that the long term prognosis will include the development of significant osteoarthritis. … – he is relatively young, still only about 26 and by the time he is in middle age, that could conceivably reach the point where he needed a total knee replacement. Then, if he did, you would say that the impairment of the leg as a whole at that time is about 45 per cent. On the other hand, if the arthroscopic surgery was able to carry out a reasonable result, and thereafter he had some limitations of movement, perhaps not being able to resume normal sport, things like that, the longer-term prognosis while still guarded will be assessed at about 10 per cent.”
Fairness to the defendants dictates that the court take a cautious attitude in assessing damages for an injury or condition which has not been investigated in appropriate detail by the doctors, as happens in the ordinary case. I think it would be quite wrong to contemplate the more dire scenario mentioned by Dr White, or anything like that. Dr Morris, who estimated the hand injury very conservatively as a 4% disability of the left arm assessed “a very minor impairment to the right leg of 3%.” Although accepting there was injury to the cervical spine (a muscular ligamentous injury), he thought there was no impairment there. He is sure the plaintiff can work.
If there were any doubt about the neck injury caused in the accident, that is dispelled by a note in Dr McQuade’s notes of an attendance a few days after the accident making reference to the accident and treatment at the hospital which appears to record a complaint of “severe neck aches” and the hospital’s failure to take X-rays (except of the hand). Mr Simmonds was unchallenged when he said he had sought assistance of an acupuncturist for the neck injury.
Dr McQuade’s records came in in an unusual way. There was no mention of him in the usual Health Insurance Commission printout which was put in evidence. Mr Simmonds mentioned the doctor as his GP in evidence and co-operation was then offered in getting hold of Dr McQuade’s records which were faxed to the court on the second day of the trial. These reveal numerous attendances by Mr Simmonds at Dr McQuade’s practice over the years, and an intriguing absence of anything to do with the accident and resulting injuries except on the single occasion mentioned. The records show Mr Simmonds took illicit drugs both before and since the accident, that he has hepatitis C and various other complaints leading to referrals to the Hepatology/Ostapowicz Clinic, the Opthalmology Clinic and the Gastroenterology Department. He may or may not have got himself on the waiting list for anthroscopy, independently of Dr McQuade. Sadly, documentation associated with Dr McQuade’s referrals in some instances tends to confirm the existence of waiting lists of considerable proportions – which may bear out Mr Simmonds’ feeling that procedures such as the recommended arthroscopy are unlikely to happen unless he can find the money to pay for them. Dr White, at least, would like to see past X-rays of the plaintiff’s cervical spine (of which it seems there were none) and have further X-rays taken for comparative purposes: see Ex 2: “MRI Scanning may also be desirable.”
I accept what the plaintiff has said about all of his injuries (except for his assessment, if he intended to advance one, that they prevent his working) and think allowance ought to be made for them in general damages, notwithstanding the limited investigation that has happened in respect of the neck and knee injuries. I assess general damages for pain, suffering and loss of amenities as $35,000.00 and would attribute $15,000.00 of that sum to the past, for purposes of allowing interest at 2% from the date of the injuries until now. I would allow $3,500.00 against the cost of a future arthroscopy, discounted from the “market” estimate of $4,500.00 (exclusive of $1,000.00 suggested by Mr Barnes for future physiotherapy and pain killers), given the limited confidence I have that the plaintiff will actually expend his own money for that purpose. The parties agreed on an amount of $1,260.00 (calculated at $21 per hour) for past Griffiths v Kerkemeyer damages, and that interest thereon worked out at $333.65. The claim for a somewhat greater amount for “future Griffiths v Kerkemeyer” linked to the anthroscopy appears too speculative to command acceptance. Agreed specials are $662.20, attracting agreed interest of $41.30.
Assessment of economic loss, past and future, is problematic. Mr Simmonds’ employment history is a chequered one. He left school at year 10 level to start an apprenticeship as a carpenter, at which he lasted “only seven months. I wasn’t really suited.” He did a couple of blocks of the TAFE carpentry course, Following some sporadic labouring and similar work, he found himself back at TAFE where he completed a certificate in horticulture, while working for Chimbu Nursery. That was steady employment for the financial year ending 30 June 1997; in the following financial year, Mr Simmonds was retrenched: “they didn’t have any more work for me.” Although work was found occasionally, the plaintiff was “mostly unemployed” until July 1999, when he began working in his parents’ business. That appears to have been steady employment which Mr Simmonds enjoyed. It was ongoing at the time of his accident, by when he was “averaging $352 net a week.” While primarily learning the skills involved in the physical work done in the business, he was also being trained and acquiring new skills in customer relations and sales (which he is attempting to turn to useful account in his current attempts to find work). There was a plan for him to take over the business, which his father, in particular, seemed keen to be quit of when he became seriously affected by stress Mr Simmonds Senior gave evidence. The plaintiff was far from being capable of taking over the business when he was injured. It is a matter of speculation whether he ever would have done so, uninjured. It struck me as curious that when he returned to work on light duties (telephone answering and the like) after the accident, he was not paid. The business seems to have been something of a “hand to mouth” affair. When it was sold in October 2004 the proprietors essentially walked out, the price obtained being sufficient to cover the business’s liabilities. It had experienced employees, who were said to clear something like $600.00 per week. My impression is that whether the plaintiff got paid depended on whether he was making contributions to support the payments. The business operated in a field in which Mr Simmonds Senior had previously had employment. Mrs Simmonds worked in it with him. Essentially, the business simply made wages for them. Thus, in the 2000 tax year, each of them garnered taxable income of $15,904.00; Mrs Simmonds picked up another $5,300.00 or so somewhere. The figures were up more than two-thirds against the year before. However, in the 2001 year, when Mr Simmonds had the difficulty mentioned, the taxable income of each of them was less than $9,000.00.
Without doubting that employment in the business was favourable for the plaintiff, given what the evidence reveals of the plaintiff’s employment history otherwise, and what may be detected in Dr McQuade’s notes, I cannot avoid thinking that the employment was somewhat tenuous. Before his accident (and indeed afterwards) Mr Simmonds typically had difficulty holding on to employment. His parents must have been concerned about that, and very anxious to do what they could to get him settled. Perhaps significantly, although the plaintiff had worked periodically for them in younger years, it was only after some years of disrupted outside employment that he was accepted into the family business. It is not clear what role the plaintiff’s flirtation with illicit drugs may have played, or when it began. Records written up before the accident refer to use of drugs. They show that in 2000 and 2001 the plaintiff had persistent problems with inability to sleep, part of which may have been connected with “financial worries”. There are references to difficulties in relationships, including a record made in early 2001: “Father in Gold Coast Hospital after domestic dispute”. If Mr Lynch intended to suggest that depression was diagnosed in June 2000, I would disagree; I take a small circle against the word “depression” there to indicate that the diagnosis was considered, but not made. The diagnosis has been made since the accident, and management by regimes of different prescribed drugs has been embarked upon. No claim was made that the plaintiff’s depression is a consequence of the accident. While other events since the accident may have contributed to the plaintiff’s depressed state, the seeds of it appear to have been already germinating. The contents of Dr McQuade’s records (Ex 19) show the plaintiff confronts very concerning health problems having nothing to do with the accident, problems which may well explain the otherwise surprising lack of focus by him on the physical problems which the accident did cause.
Mr Barnes did not assert that the plaintiff’s economic loss was susceptible of calculation – for example, on the basis that, uninjured, he could have commanded $600.00 per week clear, like fellow-employees. His parents’ experience casts a serious doubt on whether, as a proprietor (which he might have become) he would have done so well. The evidence is not persuasive that Mr Simmonds, for physical reasons, cannot work. It is appropriate to make global assessments. The plaintiff has kept good records of his post accident earnings, which are far from negligible. Whereas his 2001 group certificate showed gross earnings of $19,977.00, that for the following year (issued by Broadwater Boat Upholstery) shows $12,760.00. Those for the following years from his principal employers then (see Ex 3) are $3,832.00 and $6,375.00, representing only part of the employment. Dr White identified constraints on employability six months after the accident (Ex 1), but the plaintiff was in fact working. He was also working a year after the accident (for Riverina Boats, as noted by Dr Morris in Ex 14). In respect of past economic loss, I would adopt the amount of $18,304.00 suggested by Mr Lynch, which seems to me not ungenerous. I would add an interest component (to be calculated at 2.735% as the parties agree, on part of it, to increase the total allowance for past economic loss to $20,000.00. Past occupational superannuation (agreed to be at 8%) is $1,464.32, which would attract interest at 2.735%, namely $140.00 or thereabouts. Future economic loss I assess at $30,000.00, to which must be added lost future occupational superannuation at the agreed rate of 9%, which produces $2,700.00.
However, for the reasons set out above, the plaintiff’s claim must be dismissed, and presumably with costs on the standard basis.
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