Smithson v Guest and Nominal Defendant

[2006] QSC 106

SUPREME COURT OF QUEENSLAND

CITATION:	Smithson v Guest & Nominal Defendant [2006] QSC 106
PARTIES:	MARGARET ANNE SMITHSON (plaintiff) v GRAHAM GUEST (first defendant) NOMINAL DEFENDANT (second defendant) COUNCIL OF THE SHIRE OF BEAUDESERT (third party)
FILE NO/S:	BS 6570 of 2004
DIVISION:	Trial Division
PROCEEDING:	Trial
ORIGINATING  COURT:	Supreme Court at Brisbane
DELIVERED ON:	5 May 2006
DELIVERED AT:	Brisbane
HEARING DATE:	4 - 6 April 2006
JUDGE:	Muir J
ORDER:	Judgment for the defendants with costs.
CATCHWORDS:	TORTS – NEGLIGENCE – ROAD ACCIDENT CASES – ACTIONS FOR NEGLIGENCE – LIABILITY OF DRIVERS OF VEHICLES – MISCELLANEOUS CASES – where plaintiff’s vehicle skidded into ditch – where first defendant’s vehicle skidded and impacted with plaintiff’s vehicle – where road was slippery – whether first defendant negligent
Cook v Cook (1986) 162 CLR 376, applied Gala v Preston (1990-1991) 172 CLR 243, applied Grove v Elphick (1985) 2 MVR 74, cited Hunter v Wright (1938) 2 All ER 621, cited Jones v Dunkel (1959) 101 CLR 298, distinguished South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113, cited
COUNSEL:	J Webb for the plaintiff M Liddy with him J Wiltshire for the first and second defendants
SOLICITORS:	Robin Watson for the plaintiff Sparke Helmore for the first and second defendants

1. The plaintiff, a 50 year old registered nurse, claims against the first defendant for injuries suffered by her when a vehicle driven by him ran into the back of her stationary vehicle at about 4 p.m. on 8 November 1996 on Mundoolun Road, Mundoolun. Both liability and quantum are in issue.

   The plaintiff’s account of the accident

2. The plaintiff lived at Mundoolun and at the time of the accident was working for Queensland Health as a registered nurse in the psycho-geriatric unit at Wolston Park. The route she was accustomed to take each day on her 110 kilometre trip to and from work included travel on Mundoolun Road.

3. On 8 November 1996 part of the road was unsealed but was being made ready for bitumen surfacing. Work in this regard had been going on for some time and the road had been closed daily between 8 a.m. and 4 p.m. On the day of the accident the plaintiff planned to arrive at the junction of Beenleigh Road and Mundoolun Road at 4 p.m. On arrival she had to wait for a short period whilst a barrier across the road was removed. She then proceeded along the road at no more than 30 kilometres per hour. The surface of the road was “wet and slippery” and she felt that she had to take “extreme care”. Her recollection was that it had not rained and she concluded that the road’s damp surface was the result of watering by road workers. When she drove over a small crest and proceeded down a slight incline, she slowed to 16 to 20 kilometres per hour. In order to slow even more she touched the brakes. Her car then skidded off the road and ended up with its left hand side in a ditch at the bottom of the slope about 200 metres from the top of the crest.

4. The plaintiff got out of the car, walked around it and saw that the left hand rear wheel had sunk about 4 inches into mud and was stuck. She went back to the driver’s side of the car to pick up her mobile phone which she had left on the front passenger seat. The phone had fallen onto the passenger side floor and she got into the car to retrieve it. As she was returning to a sitting position from bending down to pick up the phone, she glanced in the rear vision mirror and saw the first defendant’s Holden Commodore coming down the slope towards her. She saw it commence to skid and braced herself for impact by taking hold of the steering wheel. The Commodore struck the rear of her Ford station wagon. She described the Commodore as hitting her car with a bang but did not recall if her car moved on impact. Neither vehicle sustained any significant damage and both were able to be driven. A tyre on the plaintiff’s car, however, was flat and had to be changed. That was done after the car was towed from the mud by a Council truck.

5. In a Motor Accident Personal Injury Notice of Claim form dated 26 November 1996, signed by the plaintiff in the presence of a solicitor, under the heading “Brief description of the accident”, the plaintiff wrote:

   “Dangerous rd conditions

   I was travelling home at approx 15 km/h when my car slid uncontrollably off the wet slippery muddy road into an embankment on my L. I became bogged – another vehicle stopped to offer assistance. I got out of my car and prepared to ring for towing assistance – with hazard lights on – I got back into vehicle to ring on mobile phone and another vehicle slid on same part of the road as myself and ran into back of my car and pushed me further into the ditch – injury sustained.”

6. In response to the question, “Who do you think was the person that caused the accident and why do you think that?”, she wrote:

“.	Graham Guest
44 Lesley St
EAST IPSWICH
who was unable to stop his car from crashing into back of mine due to road conditions
.	Beaudesert Shire Council for having the road open in such conditions.”

1. In a statement dated 3 December 1996 given by her for Workers’ Compensation purposes, she wrote:

   “At the time of my accident, road works were being conducted at the time. The road at the time was not very good. I think just before I went down the road they had wet it down. I was only driving 15 kms/hour at the time and I slid on the mud while I was going down a very slight grade at the end of the dirt. While I was waiting someone else did exactly the same thing and ran into the back of me.

   My journey is to come along the Logan Motorway and get into the Mt Lindsay Highway just before Browns Plains and travel down Mt Lindsay Highway.”

   The evidence of the first defendant

2. At the time of the accident the first defendant was driving a 1981 Commodore with a manual gear box. He was then 40 years of age and had been driving since obtaining his licence at the age of 17. He had raced vehicles on dirt roads under all weather conditions over a period of about 10 to 15 years, although he had ceased to do so approximately five years prior to the accident. He serviced his car himself and had repaired the brake system a few months before the accident. The brakes, and the car generally, were in sound mechanical condition.

3. The first defendant was familiar with Mundoolun Road as he drove on it every second weekend when collecting and returning his son under custody arrangements. On the day of the accident he had driven down the road, collected his son and was returning with him when the accident occurred. On his outward journey he recalls travelling at about 40 to 50 kilometres per hour. He noticed a “roadwork ahead” sign, but no other signage. It had been raining and the road was wet and slippery. He regarded it as dangerous in the section where the accident occurred because of its slippery clay surface. After passing the point at which the accident later happened, it took him approximately an hour to return to it. Although it was not raining on his return journey, he observed puddles of water and noticed that the surface seemed more slippery.

4. The site of the accident was virtually at the end of a seven-and-a-half kilometre unsurfaced section of roadway. Most of that section had a gravel surface but in a short length of it, including the location of the accident, had a clay surface. The first defendant considered that it had been recently graded but that it was not in its final condition preparatory for the laying of bitumen. He saw the plaintiff’s station wagon when he was about 40 or 50 metres away and deduced from its angle and location that its driver was in trouble. His speed was then about 40 kilometres per hour.

5. He did not brake immediately but gently braked shortly after seeing the plaintiff’s vehicle, stopping in a safe location a little beyond the station wagon and returning to assist its driver. He slowed his vehicle down to about 10 kilometres per hour until, when at a point fairly close to the station wagon, the brakes locked. He released the brake pedal but his vehicle continued its slide off the road. Its left front side collided with the rear of the station wagon. He did not notice if the station wagon moved forward as a result of the collision but he hardly moved in his seat. The only damage he observed on the station wagon was a dint in the rear tailgate about two to three inches round.[1] His car sustained a broken head light, a dint in the front mudguard and a dint in the bonnet.

   [1]            The plaintiff also described the damage as “a dint”.

6. He got out of his car and spoke to the plaintiff, who seemed composed. He then reversed his car up onto the centre of the road where it slid down the other side. He extricated it from the side of the road and drove it to where the bitumen commenced, only a little distance beyond. Having done this, he returned to assist the plaintiff. He changed the front driver’s side tyre, which was flat, and helped with the towing of the station wagon by a Council truck which had arrived on the scene. When he walked on the road he found himself “sliding on it”.

7. He said that he had difficulty with estimates of distance and thought that he started to apply the brakes about half-way down the incline from the crest. The evidence reveals that the incline is approximately 160 metres long.

   The plaintiff’s arguments on liability

8. Mr Webb, who appeared for the plaintiff, argued that the following considerations demonstrated that the first defendant was in breach of his duty of care. The first defendant was driving on a road which he recognised as being very slippery and dangerous. He saw the plaintiff’s vehicle in a position which indicated to him that the plaintiff was in difficulty. That should have alerted him to the existence of a special danger. Even so, on the first defendant’s evidence, he did not commence to brake immediately. When he did, he did not “gingerly touch” or “test his brakes”. He applied his brakes in circumstances in which he knew that to do so would be dangerous. The result was that he skidded off the road and struck the plaintiff’s vehicle. It is just another case of one vehicle running into the rear of another. In this case, either the first defendant’s speed was too fast or he was not keeping a proper look out. The fact that he skidded off the other side of the road when he moved his car after the accident reveals him to be an inadequate driver.

   Relevant principles of law

9. The standard of care required to be exercised by the first defendant was “… the degree of care and skill which could reasonably be expected of an experienced and competent driver”.[2] The standard is an objective and impersonal one not modified or extended by “the personal driving history, ability or idiosyncrasy of the particular driver”.[3]

   [2]            Cook v Cook (1986) 162 CLR 376 at 383.

   [3] Ibid and Gala v Preston (1991) 172 CLR 243 at 253.

10. The fact that the first defendant was travelling on a wet road and was not able to pull up safely does not necessarily establish his negligence,[4] but there is evidence of negligence by a driver where a vehicle under his control leaves the road and collides with a person or vehicle off the roadway. In such circumstances, an explanation negativing negligence may be called for.[5] Whether the circumstances are such as to give rise to an inference of negligence which the defendant is required to negative will depend on the circumstances.[6]

    [4]            Cf South Tweed Heads Rugby League Football Club Ltd v Cole (2002) 55 NSWLR 113 at 124-125 and Grove v Elphick (1985) 2 MVR 74 at 75.

    [5]            Hunter v Wright (1938) 2 All ER 621 at 622, 623 (CA).

    [6]            Millard v Grice & Miller (1967) SASR 15 at 18 and Cook v Schuettpelz (1987) 5 MVR 193.

    Observations on the evidence

11. I have no reason to doubt that both the plaintiff and the first defendant were attempting to give their honest recollections of events. Both professed to have no aptitude in assessing distances and I place little weight on their respective estimates in that regard. The evidence does not suggest that either of them gave any contemporaneous thought to the calculation of distances of the nature of those given in evidence, and accordingly their evidence of distances can amount to no more than vague impressions.

12. Generally in relation to observations of and concerning the accident, I regard the first defendant’s evidence as more reliable than that of the plaintiff. She was more emotionally affected by her predicament and shocked by her apprehension of danger when she saw the first defendant’s car approaching. Also the background and experience of the first defendant, coupled with his activities at the accident scene, put him a better position to make objective assessments of matters and conditions at the site.

13. Photographs of the site of the accident taken just prior to trial were put in evidence. They perhaps had some benefit in showing a crest and a gently sloping roadway down to the place where the accident happened. The first defendant did not consider that they gave an accurate representation of the site in the state it was in at the time of the accident and I accept that they are of limited utility. The road in the photos had been surfaced and the extent to which level of the road may have been altered by the road works is unknown. It seemed to be common ground, however, that the distance from the accident site to where the road commenced to slope was about 150 metres and that the location of the crest the road was fairly flat for about 60 metres before falling away on the other side.

14. It is relevant to note that the person who took the measurements was not said to have any particular expertise and there was no evidence to suggest that the precise location of the accident could be identified.

15. At the time of the accident, the first defendant’s 10 year old son was in the back of his vehicle and a workmate was in the front passenger seat. Neither person was called to give evidence on the first defendant’s behalf. Mr Webb submitted that the failure to call these witnesses gave rise to the inference that their evidence would not have assisted the first defendant’s case and entitled the court to take that into account in order to more readily draw inferences fairly to be drawn from other evidence in the case.[7] It was not explained, however, what inferences could be drawn from the evidence and I would not be disposed to apply the rule in Jones v Dunkel in relation to the missing passenger. He was a former workmate whom the first defendant had not seen for about seven years. The first defendant said that he had no way of contacting the former workmate and was not cross-examined in relation to this evidence. In 2001 a private investigator retained by the second defendant had attempted to find the person without success. I do not regard the failure to call the first defendant’s son as being of any particular significance either. He was quite young at the time of the accident and was sitting in the back seat. It is quite understandable that a father may be reluctant to require his son to give evidence, particularly as the evidence was likely to amount, at best, to vague impressions diluted by the passing of the years.

    [7]            Jones v Dunkel (1959) 101 CLR 298.

16. Mr Webb also sought to make something of evidence that the first defendant had lost his driver’s licence on two occasions, but when that happened and in what circumstances were not explored. The evidence thus has no probative value.

17. A tyre of the plaintiff’s car was flat. Her recollection is that it was the rear passenger side tyre. The first defendant’s is that the flat was on the front driver’s side. Neither party submitted that it played any role in the plaintiff’s skidding off the road or that it was caused by the impact of the two vehicles. It is thus unnecessary to decide which tyre was flat or what role, if any, it may have played in the skidding of the plaintiff’s car.

    Findings of fact in relation to liability

18. My findings of fact are as follows. The plaintiff was travelling at less than 20 kilometres per hour and exercising caution appropriate in the circumstances when she skidded off the road to the left into a spoon drain. The surface of the road where the skidding took place was clay. Rain earlier that day and perhaps on a previous day or days, had made the road wet and slippery. Some measure of its slipperiness can be gauged from the facts that: the plaintiff and the first defendant’s vehicles each skidded off the road although travelling at quite slow speeds; the first defendant’s vehicle skidded off the other side of the road when he reversed it back onto the middle of the road after the accident; and the first defendant found the road surface slippery to walk on.

19. I do not accept the contention advanced on behalf of the plaintiff that the road surface had become wet as a result of watering by Council trucks. The first defendant gave evidence of rain, which I accept. The wetness of the road and, more particularly, the boggy conditions on its left hand verge were unlikely to be the result of watering for road construction purposes. Meteorological records also support the first defendant’s evidence in this regard.

20. The first defendant was travelling back along Mundoolun Road when he observed the plaintiff’s vehicle and deduced from its position that the driver was “in trouble”. His speed was then about 40 kilometres per hour. He formed the intention of going to the driver’s assistance and, with a view to stopping, gently applied his brakes. His car slowed, without skidding, to well under half its previous speed before commencing to skid off the road into the rear of the plaintiff’s vehicle. The first defendant’s vehicle was fairly close to the plaintiff’s vehicle when its skidding commenced.

21. The latter conclusion is consistent with the plaintiff’s evidence at trial. My conclusion as to the first defendant’s speed when the skidding commenced derives considerable support from the minor extent of the damage to both vehicles and from the fairly short length of travel during the skid.

22. In the course of his submissions, Mr Webb criticised the first defendant’s mode of braking as being insufficiently tentative and exploratory. I do not accept that the criticism is justified. The first defendant was a driver with unusually extensive experience in driving in the types of conditions encountered on the relevant section of Mundoolun Road. He was fully familiar with his vehicle and its capabilities. He braked gently and his vehicle travelled for a considerable distance whilst slowing without there being any indication that some other method of braking might be required. By the time the car commenced to skid, its speed was such that no reasonable driver in the position of the first defendant would have had a concern that its speed was too fast for the road conditions or that continued gentle braking was inappropriate.

    Conclusion on liability

23. In my view, the circumstances of this accident are such that the facts, without the evidence of the first defendant, do not support a finding of negligence. The plaintiff’s evidence, which I accept, is that she was driving slowly and cautiously but nevertheless skidded off the road. The first defendant’s vehicle skidded off the road in much the same place. There is no credible evidence that he was travelling at an excessive speed. Rather, the evidence to which I have already referred suggests that his speed was quite slow at the time of the skid. Whilst events were fresh in the plaintiff’s memory she attributed the accident to the condition of the road. Plainly, it presented a considerable hazard which cautious driving could not always overcome.

1. The plaintiff’s case does not improve when the first defendant’s evidence is considered. It is reasonable to conclude that both vehicles probably would have negotiated the dangerous section of road successfully had neither driver braked. But the plaintiff felt the need to do so because of her concern with the condition of the road. The first defendant had even more reason to brake. He, quite properly, desired to render assistance to the plaintiff. I consider it probable that his braking was motivated also by caution as a result of his seeing a car which had run off a wet road. By the time the first defendant’s vehicle started to skid, its speed was most probably appreciably slower than that of the plaintiff’s vehicle when it commenced its skid. The first defendant had successfully negotiated the unsealed section of the road once and had travelled over nearly the whole length of the unsealed section of road without mishap when the accident occurred. He had also reduced his speed to take into account his appreciation of the changed road conditions.

2. For the above reasons, I find that the plaintiff has failed to establish that the first defendant did not exercise the degree of care and skill which could reasonably be expected of an experienced and competent driver. Liability has not been established.

   Quantum

3. The evidence in relation to quantum is a morass into which, in the circumstances of this case, I have no intention of sinking. Rather than attempting the Herculean task of disentangling the plaintiff’s quantum evidence, I propose to content myself with some general findings of fact.

4. The Statement of Claim included a claim for damages for psychiatric impairment (post traumatic stress disorder) but no evidence was led in support of that claim. Nor was it submitted by counsel on the trial that damages should be awarded under that head of damages.

5. The plaintiff sustained a soft tissue injury to her cervical spine in the accident. Medical opinions formed or given in 1996 and 1997 were optimistic about the plaintiff’s prospects of making a full recovery. Doctors English, Morling and Tan expressed such an opinion in reports dated 21 January 1997, 24 January 1997 and 4 April 1997 respectively. Doctor Yaksich, neurosurgeon, in his report of 4 August 1997, observed that the plaintiff “has a fairly typical soft tissue neck injury and is improving progressively…”. He remarked on the plaintiff’s “keenness to return to work activity”.

6. The plaintiff, however, continued to experience headaches and neck pains when engaged in physical activities such as twisting, lifting or driving. The pain was such that she was unable to continue gardening or doing any other than light housework.

7. Dr Adam, a specialist in occupational medicine, in a report of 7 July 1998, stated the opinion that the plaintiff was unable to return to her former role as a psychiatric nurse at Wolston Park and that “this partial disability should be considered permanent”. He was of the view, however, that the plaintiff “could manage some other jobs which take advantage of her nursing training” such as working in out- patients or community psychiatry.

8. Dr Yaksich, in a report of 15 April 1998, considered that although the present prognosis was unclear it was unlikely that the plaintiff would be permanently prevented from returning to the “heavier type of work she was doing previously”. He considered that when he saw her on 29 January 1998 she was unfit for “gainful employment”.

9. Dr Toakley, a neurosurgeon now deceased, saw the plaintiff in March 1998. He concluded that she had a chronic neck condition as a result of the accident and doubted that she would return to full-time nursing as a sister at Wolston Park. He also considered that she was then unfit for work. In a report of 27 May 1998, he concluded it unlikely that he condition would improve. He said that she could undertake alternative employment “inside her employing authority if she were capable of getting a job where she could sit, stand etc and not in any way stir up her neck condition”. He was doubtful though that an employer would find such conditions acceptable and concluded that “it would be sensible to payout a permanent disability pension”.

10. Dr White, orthopaedic surgeon, in a report of 6 November 2002, suggested that further ex-rays of the plaintiff’s cervical spine be taken and that she also have an MRI scan. His provisional view was that the plaintiff was likely to remain “permanently unfit for work involving heavy physical labour or maintenance of the head and neck in fixed positions for extending periods of time”. After reviewing the MRI scan performed in November 2002, he concluded that the plaintiff had a whole of body impairment of to the order of eight percent. He adhered to that conclusion in a report of 28 March 2006 in which he said:

    “I consider Ms Smithson will remain permanently [un]fit for work involving significant physical labour or maintenance of the head and neck in fixed positions for extended period of time.”

11. Contrary views about the plaintiff’s employability are held by two other orthopaedic surgeons, Dr Boys and Dr Tan.

12. Dr Boys, saw the plaintiff in November 1999. In his report of that month, he stated, inter alia:

    “This lady’s major complaint is frontal headache. She relates no specific visual disturbance and no particular nausea associated with these headaches. …Ms Smithson states that her neck is not a problem to her. She does relate occasional strain now at the base of the neck radiating into the triceps region. She tends to note this with activities such as sleeping awkwardly on a lounge or after protracted positioning of the neck with activities such as tapestry or polishing brassware …”

13. Dr Boys concluded that the plaintiff “experiences minor intermittent postural strain symptoms referable to the neck as a consequence of age related degenerative change of the cervical spine. Symptoms are intermittent, low grade and… cause no functional incapacity whatsoever”. In his opinion, the headaches were not related to her past injury.

14. In a later report of 30 March 2006, Dr Boys, having reviewed more recent reports and the results of a CT scan performed in June 2005, concluded that the changes described in the CT scan are consistent with the degenerative changes within the neck at C5/6 levels as previously noted by him.

15. In cross-examination Dr Boys reaffirmed his view that the plaintiff had no functional incapacity relating to her neck. In his view, the explanation for the plaintiff’s “postural neck strain” is degenerative changes within her neck and that it was probable that the injury brought to light pre-existing symptoms. He was not, however, able to conclude that it was more probable than not that the symptoms would have manifested themselves by the time of trial were it not for the accident. He also reaffirmed in cross-examination that, accepting the plaintiff’s symptomatology, she was capable of working as a psychiatric nurse. In that regard, he advised that she alter her work practices in order to relieve neck strain.

16. In a report of 13 September 1999, Dr Tan expressed the opinion that the plaintiff was totally incapacitated for a maximum period of about nine months from the time of the accident and that after that time she was able to return to normal duties. In his opinion, stated in a file note of 30 March 2006 adopted by him, the plaintiff’s motor vehicle accident did not injure her vertebrae and that her headaches were not a consequence of that injury. In his opinion, the plaintiff sustained a mild soft tissue injury of the cervical spine in the accident. It was put to him that it was generally accepted by medical practitioners that if persons with soft tissue injuries to the cervical spine still have complaints two years after an injury those complaints are likely to continue. Dr Tan would not accept that proposition. In his view, the symptoms are likely to arise from a range of other factors which come into existence after the injury. He accepted that there were others in the medical profession who held views contrary to his on the matters under consideration.

17. The plaintiff is a well-motivated woman concerned to work to the maximum extent possible in order to provide herself and her children with a reasonable standard of living. She is highly competent professionally and should have little difficulty in obtaining and keeping work in administrative areas relating to psychiatric nursing. I accept her evidence that, because of pain and discomfort, she is unable to do the work of a psychiatric nurse that she was doing at Wolston Park. That work causes her a degree of pain which she, not unreasonably, does not wish to bear. However, the medical evidence and her past work history do not support the view that she is generally unemployable. On the other hand, the evidence does support the conclusion that the remuneration in less active fields now open to her will be rather less than the remuneration she would receive if she continued in her former employment. A major reason for the income differential is the availability of overtime work in psychiatric nursing at the level 2 pay rate.

18. I have concluded that the medical evidence does not establish that, were it not for the accident, the plaintiff would have experienced the neck symptoms from which she suffered at the date of the trial as a result of degenerative spinal changes. There is, however, a substantial chance that spinal degenerative changes, coupled with work-induced injury, would have given rise to such symptoms by the time the plaintiff was 55 years of age.

    Conclusion

19. The plaintiff has not succeeded in establishing liability on behalf of the defendants. There will be judgment for the defendants with costs.