Steed v McDougall
[2019] ACTSC 36
•22 February 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Steed v McDougall |
Citation: | [2019] ACTSC 36 |
Hearing Dates: | 10 – 12 September 2018 |
DecisionDate: | 22 February 2019 |
Before: | Loukas-Karlsson J |
Decision: | (a) Judgment for the plaintiff in the sum of $478,561.77. (b) The defendants are to pay the plaintiff’s costs of the proceedings. |
Catchwords: | TORTS – NEGLIGENCE – Motor vehicle accident – collision between motor vehicle emerging from driveway and postal motorcyclist – whether defendant breached duty of care – whether plaintiff was contributorily negligent – calculation of damages |
Legislation Cited: | Australian Road Rules, rr 13, 74, 75, 288, 296 Civil Law (Wrongs) Act 2002 (ACT) ss 42 – 46. Road Transport (Safety and Traffic Management) Regulation 2000 (ACT) s 32 |
Cases Cited: | Baker v Mackenzie [2015] ACTSC 272; 72 MVR 421 Derrick v Cheung [2001] HCA 48; 181 ALR 301 Warth v Lafsky [2014] NSWCA 94; 66 MVR 445 |
Parties: | Trevor Steed (Plaintiff) Joshua McDougall (First Defendant) Insurance Australia Limited trading as NRMA Insurance (ABN 11 000 016 722) (Second Defendant) |
Representation: | Counsel Mr A Black SC and Mr D Crowe (Plaintiff) Mr K Rewell SC (Defendants) |
| Solicitors Maurice Blackburn (Plaintiff) Moray and Agnew (Defendants) | |
File Number: | SC 260 of 2017 |
LOUKAS-KARLSSON J
Introduction
The plaintiff is a 53 year old man. As at July 2014, he had been employed by Australia Post for 25 years. He was a postman delivering mail while riding on a small motorbike. On 24 July 2014, the plaintiff, then aged 48, was working. He finished his first postal run at about 10:00am. He then went to collect additional mail for delivery. Subsequently, he rode along Mannheim Street in Kambah, where he delivered mail. After that delivery, he rode a short way down the footpath. At that time, the first defendant was reversing his Toyota Supra Motor Vehicle (the Supra) out of a driveway which crossed the path the plaintiff was riding on. There was a collision between the two vehicles. As a result of the collision, the plaintiff has suffered ongoing injuries which have limited his ability to work, and have reduced his general enjoyment of life. The plaintiff seeks damages as a result.
The issues that must be determined in this case are:
(a)Was the first defendant negligent?
(b)If so, was the plaintiff guilty of contributory negligence?
(c)If so, to what extent should damages be reduced by reason of that contributory negligence?
(d)The quantum of any damages to which the plaintiff is entitled.
Brief Outline of the Evidence
Mr Trevor Steed (The Plaintiff)
Broadly, the plaintiff gave evidence in relation to the collision, his injuries, and the ongoing consequences of his injuries.
Ms Yasminka Versegi
Ms Versegi is the wife of the plaintiff, and gave evidence in relation to the ongoing consequences of her husband’s injuries.
Mr Joshua McDougall (The First Defendant)
The first defendant gave evidence in relation to reversing from his driveway and the collision.
Mr John Jamieson
Mr Jamieson is a qualified engineer and invited Fellow of the Institution of Engineers, Australia. He is the principal of Jamieson Foley & Associates Pty Ltd, Consulting Forensic Engineers. He prepared a report and gave expert evidence into the collision on behalf of the plaintiff.
Mr Glen Urquhart
Mr Urquhart is a qualified engineer. He is a forensic engineer and collision reconstructionist with William Keramides & Associates Pty Ltd. He prepared a report and gave expert evidence into the collision on behalf of the defendants.
Exhibits
Exhibit 1 – Plaintiff’s Tender Bundle
The plaintiff’s tender bundle included the following documents:
(a)Liability Report from Jamieson Foley Consulting Forensic Engineers dated 30 April 2018;
(b)The following medical reports:
(i)Report of Dr Leigh Nomchong dated 13 December 2015;
(ii)Report of Dr Garth Eaton dated 20 May 2015;
(iii)Report of Dr Garth Eaton dated 2 April 2016;
(iv)Report of Dr Saba Somasundaram, dated 5 April 2016;
(v)Report of Dr Nigel Strauss dated 28 November 2017;
(vi)Report of Dr Clayton Thomas dated 11 December 2017;
(c)Clinical notes from:
(i)Dickson Park Medical Centre;
(ii)Kambah Medical Centre;
(iii)Woden Integrated;
(iv)Dr Damian Smith;
(v)Nomchong Psychology;
(vi)Western Regional Alcohol and Drug Centre Inc;
(vii)Radiological Reports;
(d)Economic Loss Documents, including:
(i)A Summary;
(ii)Individual Taxation Returns from 2010 to 2014;
(iii)Notice of Assessments from 2010 to 2014;
(iv)Payment Summaries from 2010 to 2018;
(e)Out of pocket expenses documents, including:
(i)A summary schedule of out of pocket expenses dated 15 August 2018, with corresponding tax Invoices/receipts;
(ii)Medicare Claims history statement dated 22 June 2018; and
(iii)Australia Post schedule of payments received 1 August 2018.
Exhibit 2 – Plaintiff’s Chronology
Exhibit 2 consisted of the plaintiff’s chronology.
Exhibit 3 – Photograph of the First Defendant’s Driveway and Surrounding Area
10. Exhibit 3 contained a photograph with notations made by the plaintiff in the course of his evidence.
Exhibit 4 – First and Second Defendants’ Tender Bundle
11. This was constituted by the report of Mr Urquhart, engineer.
Exhibit 5 – Relevant Statutory Material
12. Specifically, the Court was referred to sections 32 of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), and rules 13, 74, 75 and 288 of the Australian Road Rules (ARR). Section 32 of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT) provides as follows:
32 ARR r 313—postal workers
For the Australian Road Rules, rule 313—
(a)the Australian Road Rules, rule 186 (Stopping in a mail zone) does not apply to the driver of a postal vehicle; and
(b) the Australian Road Rules, rule 288 (Driving on a path) does not apply to the driver of a postal vehicle if—
(i) the vehicle is a motorbike with an engine capacity of not more than 110mL; and
(ii) the vehicle is being driven at a speed of not more than 10km/h.
13. Rules 13, 74, 75 and 288 of the ARR at the time of the incident were as follows:
13 What is a road-related area
(1) A road-related area is any of the following:
(a)an area that divides a road;
(b) a footpath or nature strip adjacent to a road;
(c)an area that is not a road and that is open to the public and designated for use by cyclists or animals;
(d)an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles.
(2) However, unless the contrary intention appears, a reference in the Australian Road Rules (except in this Division) to a road-related area includes a reference to:
(a)an area so far as the area is declared, under another law of this jurisdiction, to be a road-related area for the Australian Road Rules; or
(b)any shoulder of a road; or
(c)any other area that is a footpath or nature strip as defined in the dictionary; but does not include a reference to an area so far as the area is declared, under another law of this jurisdiction, not to be a road-related area for the Australian Road Rules.
74 Giving way when entering a road from a road related area or adjacent land
(1)A driver entering a road from a road-related area, or adjacent land, without traffic lights or a stop sign, stop line, give way sign or give way line must give way to:
(a)any vehicle travelling on the road or turning into the road (except a vehicle turning right into the road from a road-related area or adjacent land); and
(b)any pedestrian on the road; and
(c)any vehicle or pedestrian on any road-related area that the driver crosses to enter the road; and
(d) for a driver entering the road from a road-related area:
(i) any pedestrian on the road-related area; and
(ii) any other vehicle ahead of the driver’s vehicle or approaching from the left or right.
Offence provision.
(2)In this rule:
road does not include a road-related area.
(example omitted)
75 Giving way when entering a road-related area or adjacent land from a road
(1)A driver entering a road-related area or adjacent land from a place on a road without traffic lights or a stop sign, stop line, give way sign or give way line must give way to:
(a)any pedestrian on the road; and
(b)any vehicle or pedestrian on any road-related area that the driver crosses or enters; and
(c)if the driver is turning right from the road — any oncoming vehicle on the road that is going straight ahead or turning left; and
(d)if the road the driver is leaving ends at a T–intersection opposite the road-related area or adjacent land and the driver is crossing the continuing road — any vehicle on the continuing road.
Offence provision.
(2)In this rule: road does not include a road-related area.
(example omitted)
288 Driving on a path
(1)A driver (except the rider of a bicycle) must not drive on a path, unless subrule (2) or (3) applies to the driver.
Offence provision.
(2)A driver may drive on a path if the driver is:
(a)driving on a part of the path indicated by information on or with a traffic control device as a part where vehicles may drive; or
(b)driving on the path to enter or leave, by the shortest practicable route, a road-related area or adjacent land and there is not a part of the path indicated by information on or with a traffic control device as a part where vehicles may drive; or
(c)permitted to drive on the path under another law of this jurisdiction.
(3)A driver may drive a motorised wheelchair on a path if:
(a)the unladen mass of the wheelchair is not over 110 kilograms; and
(b)the wheelchair is not travelling over 10 kilometres per hour; and
(c)because of the driver’s physical condition, the driver has a reasonable need to use a wheelchair.
(4)A driver on a path (except the rider of a bicycle, or a driver driving on the path to enter a road from a road-related area or adjacent land, or to enter a road-related area or adjacent land from a road) must give way to all other road users, and to animals, on the path.
Offence provision.
(5)This rule does not apply to the rider of an animal riding the animal on a footpath.
(6)In this rule:
path means a bicycle path, footpath or shared path.
14. The parties further referred to r 296 of the ARR in their submissions. As at the time of the accident, r 296 provided as follows:
296 Driving a vehicle in reverse
(1)The driver of a vehicle must not reverse the vehicle unless the driver can do so safely.
Offence provision.
(2)Australian Road Rules – February 2012 version 261 (2) The driver of a vehicle must not reverse the vehicle further than is reasonable in the circumstances.
Offence provision.
Exhibit 6 – Additional and Clearer Photographs
15. This exhibit consisted of additional and clearer photographs of the scene of the accident, as well as the vehicles involved.
The Plaintiff
16. The plaintiff worked as a motorcycle postal delivery officer from approximately 1989. He continued working in that capacity until the accident (T10.27). This included riding his motorcycle on footpaths (T12.5). He received compulsory training on using motorcycles from Australia Post every two years. The plaintiff also had a role in providing training to other Australia Post workers (T11.42-T12.4). He had been delivering mail in Kambah on a daily basis for approximately two and a half years at the time of the accident (T12.35). He had observed other Honda 110cc motorcycles used on the footpath in the area of 55 Mannheim Street.
17. The plaintiff gave evidence that he was aware that Australia Post motorcyclists were not permitted to exceed 10km/h on footpaths. This was the upper limit allowed (T12.11).
The First Defendant – Mr Joshua McDougall
18. At the time of the accident, the first defendant had lived at the address where the accident occurred for about 11 years (T68.16). He bought the Supra in 2008. He had owned the Supra for approximately six years as at the time of the accident (T68.32). The first defendant knew that there was reduced visibility to the north from the driveway due to foliage (T69.37).
19. When reversing from the driveway, the first defendant’s usual practice was to very slowly clear a ‘hump’ in the driveway of 5-6 inches caused by a tree root, and “then let gravity take [the car] the rest of the way down to the road” (T69.15). He knew that he was required to give way to people or vehicles travelling on the path (T75.31). His usual practice was to look to his left before the vehicle got to the footpath (T75.37). He agreed it was possible to see 18-20 metres north along the path from a point on the driveway before the car encroached on the footpath (T75.43).
The Accident
The Plaintiff
20. The plaintiff gave evidence that he stopped at the letterbox next door to the first defendant’s house to make a delivery (T13.38 and Exhibit 3). He stated that he was travelling at no more than 10 km/h (T14.17). Further, he stated that he was not in a hurry (T14.37), and that he was gentle on the throttle (T14.34). He was also ‘scanning’ as he travelled along the path, in accordance with his training (T14.44).
21. The plaintiff gave evidence that he was travelling in the middle and off middle (to the right) along the footpath as he approached the driveway (T40.4). He was wearing his high-visibility PPE, including fluorescent yellow jacket, white helmet, cream-coloured pants, and the motorcycle was fitted with a fluorescent yellow pennant suspended two metres from the ground (T18.5-20). The plaintiff stated that he could not see the First Defendant’s vehicle before it came onto the footpath (T15.13) because of shrubs, bushes, a fence and the tree adjacent to the driveway at 55 Mannheim Street (T15.9). The plaintiff stated that the vehicle was difficult to see because of the overcast conditions, the black colour of the vehicle, and because the vehicle blended into the foliage.
22. The plaintiff stated that he first saw the first defendant’s vehicle when it was two metres away as the vehicle reversed at a fast jogging pace (T15.16). He stated that he took evasive action by veering to the right, applying the back brake and then the front brake while leaning so as to avoid falling from the bike (T15.21).
23. The plaintiff stated that there was a collision between the plaintiff’s vehicle and the left-hand side of the motorcycle. The impact was mainly taken by the plaintiff’s left leg and the hand/ handlebar of the motorcycle (T15.28-35).
24. There was a skid on the footpath present prior to the collision, which the plaintiff stated was not left by him (T15.37-48). The plaintiff stated that the vehicle and motorcycle stopped at virtually the same time the collision occurred (T16.12 and T36.39). The plaintiff stated that the first defendant told him immediately after the collision, ‘Mate, I didn’t see you’ (T16.26).
The First Defendant
25. The first defendant gave evidence that he first saw the plaintiff approaching when the Supra was about a metre past the hump in the driveway (T71.10), while the Supra was still moving backwards (T71.16). He stated that the plaintiff was 10 metres from the driveway when he first saw him (T71.33). Upon seeing the plaintiff, he stated that he applied his brakes, and that the Supra ‘stopped instantly’ (T71.30) and did not move further before the collision (T72.1). He stated that after the collision, the Supra rolled back six to eight inches (T72.8).
26. Upon getting out of the Supra, the first defendant stated that he was surprised by how far down the driveway and across the path he had positioned the car, so as not to give the plaintiff enough room to pass behind the Supra on the path (T72.32).
27. The first defendant ‘certainly’ agreed that careful driving would dictate that when reversing, he would make sure he was in a position where he could stop the vehicle before encroaching on the path at a point where he could see vehicles or pedestrians approaching on the path (T76.21) and that this did not happen on the day of the accident (T76.23).
28. The first defendant conceded that he first noticed the plaintiff when the Supra was beginning to encroach on the path (T78.3). He considered that he was “definitely partly at fault” for the accident (T79.9). He agreed that he said “I didn’t see you, mate” to the Plaintiff immediately after the collision (T80.36). He agreed that he brought the Supra to a stop at a position which did not allow room for the plaintiff to pass behind it while remaining on the path (T82.6).
Chronology of Relevant Events
29. For reasons of brevity I have not included all medical appointments and all matters noted on the plaintiff’s chronology.
30. The plaintiff commenced with Australia Post in mid-1989 as a part-time postal delivery officer in Adelaide. He became a permanent employee of Australia Post in 1990.
31. The plaintiff’s driver’s licence was suspended for 12 months in 1992. In about 1993, the plaintiff was knocked off his motorcycle and knocked unconscious by a car in the course of his employment. In about 1995, he was knocked off his motorcycle in the course of his employment. He had no injuries, and collected another motorcycle to complete the delivery run.
32. In March 1997, the plaintiff and Ms Versegi were married in Adelaide. They relocated to Canberra in 2004.
33. The plaintiff presented to Dr Saba Somasundaram on 8 March 2012, complaining of stress and poor sleep, noting that he had been having a hard time at work with his supervisor.
34. The accident, which is the subject of these proceedings took place two years later on 24 July 2014. On the same day, the plaintiff presented to Dr Buczynski (Australia Post General Practitioner) by taxi. He had an x-ray of his left knee/tibia and fibula.
35. On 9 August 2014, the plaintiff presented to Dr Somasundram. The clinical notes indicate the following:
l/s ankle still sore. Awaits MRI l/s knee. Stressed. Worried and panicked about going on the bike. Can’t sleep. Anxiety. Counselled. Scared about going on the bike.
36. The plaintiff presented to Dr Somasundram again some months later on 14 October 2014. The clinical notes indicate the plaintiff presented with the following:
Still in a lot of pain. Tender l/s knee. MRI awaited. Possible scar tissue. M/c until 6/11/14
37. The plaintiff presented again to Dr Somasundram on 25 November 2014. The clinical notes indicate that the plaintiff presented with the following:
L/s knee still sore. Walks with the stick. Feeling depressed. Insurance not helpful. Poor sleep. Can’t concentrate. Counselled.
Refer psychologist. Advised on pain management. Teary and stressed. Seeing the physio.
38. On 4 December 2014, orthopaedic surgeon Dr Damian Smith wrote to Dr Somasundram about the plaintiff. The letter indicates Dr Smiths’s strong recommendation was that the plaintiff seeks psychological input as well as a referral to a chronic pain expert, such as Dr Geoffery Speldewinde.
39. Later that month, on 17 December, the plaintiff presented to Dr Somasundram, where he was referred to Mr Leigh Nomchong (psychologist).
40. The plaintiff underwent an ultrasound guided corticosteroid injection into his left knee on 8 January 2015.
41. Two months later, on 2 March 2015, the plaintiff presented to Mr Nomchong. The plaintiff and Mr Nomchong discussed the circumstances of the accident, the pain, symptoms and his treatment, as well as his family background and his difficulties working under management. The clinical notes indicate that the plaintiff was petrified of being hit again. Mr Nomchong gave a diagnosis of post-traumatic stress disorder (PTSD) and Adjustment Disorder.
42. The next day, the plaintiff presented to Woden Integrated Physiotherapy. He presented to Mr Nomchong two weeks later on 17 March 2015. The clinical notes indicate that the plaintiff was upset over Australia Post’s investigation into the motor vehicle accident, and the overall injustice of the situation.
43. The plaintiff presented to Dr Somasundram on 2 April 2015. The clinical notes indicate that he was still very anxious and depressed, and that his left knee was still sore. The notes indicate that he was “not coping”, had “poor sleep”, and that he would “need more counselling.
44. On 21 April 2017, the plaintiff presented again to Mr Nomchong. The plaintiff complained of difficulties with working in Tuggeranong, and his preference to return to work elsewhere.
45. The plaintiff presented to Dr Somasundram on 1 May 2015, where his work injury was discussed. The clinical notes indicate that he was on a graduated return to work schedule.
46. On 7 May 2015, the plaintiff presented to Mr Nomchong. The clinical notes indicate that he was worried about “being bullied by his old boss”, and that he had flashbacks and nightmares.
47. The plaintiff commenced his graduated return to work on 11 May 2015. The attempt was unsuccessful, and ultimately he went off again soon after. Mr Nomchong notes that on 12 May 2015, he received a message from the plaintiff, indicating that he had attempted to return to work ‘on a mail frame at Canberra South, his greatest fear’, but that he became distressed and left work to see his GP. The plaintiff presented to Dr Somasundaram on the same day, who made the following clinical note:
Went back to work sorting mail. Not desk job. Was anxious. Vomited. Was there for an hour and a half. Bad memory. Can’t sort mail. Not in the med cert. Seeing Nomchong. M/C unfit until 29/5/15. Med cert no sorting, no prolonged standing and self-management
48. The plaintiff was later examined by Dr Eaton, an occupational physician, for the purpose of the preparation of a medical report. The visit was organised by the plaintiff’s lawyers. The report summarises that the plaintiff had been off work since the motor vehicle accident on 24 July 2014. An examination of his left knee “revealed a click/clunk which was both audible and palpable”. The treatment recommendations from Dr Eaton included ongoing counselling and physiotherapy. Dr Eaton recommends that the plaintiff may benefit from a multidisciplinary cognitive behavioural pain management program. Dr Eaton’s diagnosis was as follows:
Undisplaced fracture left tibial plateau.
Soft tissue injuries to left knee and lower leg and left ankle and 4th and 5th fingers left hand as described.
Arthroscopy left knee, chondroplasty and lateral release 16 February 2015.
Chronic left lower limb pain and dysfunction.
Associated symptoms of stress, anxiety and depression.
49. Dr Eaton’s prognosis included that the plaintiff was likely “to require [work] restrictions indefinitely and…will not be fit to resume the full duties, including motorcycle duties, of a postal delivery officer”.
50. The plaintiff presented to Mr Nomchong again on 3 June 2015. The clinical notes indicate that he was very distressed over PTSD, that his pay had stopped and that he was living on sick leave, which was running out. It also notes that his knee was playing up again, and that he was having nightmares and traffic anxiety. The notes reveals that the plaintiff and Mr Nomchong discussed two previous motor vehicle accidents on a bike with Australia Post in Adelaide, but that “this third one has pushed him over the edge he feels”.
51. A week later, on 10 June 2015, Trevor resumed his graduated return to work at a rate of two hours, three days per week. This was to increase to four hours, three days per week by July 2015, and five hours, five days per week in August. On 22 June, the plaintiff presented to Mr Nomchong. The clinical notes indicate that he is undertaking administrative duties at work and that nightmares and traffic anxiety are persisting, but that he was liking his new administrative job. This was the final session with Mr Nomchong that was funded by Australia Post.
52. The plaintiff presented to Mr Nomchong, psychologist, on 7 July 2015. The clinical notes indicate that the plaintiff is to be independently examined for Australia Post, and that he is still upset talking about the accident, including nightmares and waking up all night. The notes indicates that management at Tuggeranong have criticised him for being off work. The notes also indicate that he has had knee pain during sex, and that stress returns “even just going down to the letterbox”. Mr Nomchong notes that the plaintiff is very worried for his future.
53. The plaintiff subsequently presented to Dr Somasundaram on 10 July 2015. Dr Somasundaram made the following clinical notes in relation to the visit:
L/s knee pain worse. On examination some effusion, reduced movements. For moic and rest. Happy with work. Also had assessment by Dr for Post. Poor sleep and nightmares. Psychologist helps. Possibly add a 4th day for 4 hours. Now increase to 6 hrs for 3 days per week. Review 30/7/15.
54. At the end of the month, on 30 July 2015, the plaintiff presented to Mr Nomchong, who reported that the plaintiff was going to commence working 5 days a week for 5 hours a day. The plaintiff reported coping with work at that point in time, but that an “old antagonist at Tuggeranong” had moved to the Canberra Mail Centre, leading to a panic attack. The notes indicate that the plaintiff’s nightmares about the accident were persisting.
55. About a month later, on 20 August 2015, the plaintiff again presented to Mr Nomchong. The clinical notes indicate that the plaintiff was angry about the medical report, and the approach to rehabilitation by his employer. He also reported that his knee was always sore, but that he was discussing increasing hours to eventually go full-time.
56. At the end of that month, on 31 August 2015, the plaintiff went off work again after a psychological reaction to an interaction with the former antagonist who had moved to the Canberra Mail Centre. Mr Nomchong has a note from 3 September 2015 indicating that the plaintiff went home sick the previous day due to knee problems, and the stress reaction caused by the former antagonist.
57. The plaintiff presented to Dr Somasundaram on 9 September 2015. Dr Somasundaram made the following clinical note:
Feeling suicidal. Knee is painful. Poor sleep. Awaits crisis team. Seeing Nomchong arvo.
58. On the same day, the plaintiff presented to Mr Nomchong with his wife, Ms Versegi. The plaintiff reported being suicidal, having bad dreams, and waking depressed. The notes also indicate that he has been attending work in tears, and is having persistent problems with the former antagonist. Mr Nomchong notes that he suggested a case conference should be held, as well as suggesting that the plaintiff discuss further psychological sessions with his GP.
59. The case conference was scheduled to take place on 17 September 2015, however, no representative from Australia Post presented. The plaintiff instead had a consultation with Mr Nomchong in his rooms. The clinical notes indicate that he presented as worn out, exhausted and anxious, and that he was not sleeping well. The notes state that the plaintiff was “on the verge of running out in front of a bus”.
60. The plaintiff presented to Mr Nomchong again on 7 October 2015. The clinical notes indicate that the plaintiff was upset by an email from Australia Post that indicated that relocation to the Mitchell branch would not be possible. The notes indicate that the plaintiff no longer wanted to be a postie anymore, and that he gave a history to Mr Nomchong of being harassed and intimidated by the former antagonist. On 12 October, Mr Nomchong made a file note from a phone call with the plaintiff. The note indicates that the plaintiff has made a second claim for PTSD, and that he is “not coping”.
61. On 22 October 2015, the plaintiff presented to Mr Nomchong. The clinical notes recorded indicate that the plaintiff is feeling depressed all the time. The plaintiff recorded having dreams of the former antagonist, which would send him into “fists of rage”. The notes also indicate that the plaintiff’s left knee is not going well, and has been swelling. Mr Nomchong indicates that he sent an email to Australia Post requesting four further sessions with the plaintiff.
62. On 4 November 2015, Mr Nomchong’s notes indicate that Australia Post agreed to four more sessions with the plaintiff. The plaintiff presented to Mr Nomchong on that date, complaining of not sleeping well. The notes indicate that the former antagonist has been moved back to Tuggeranong, but that another employee who “hates” the plaintiff had been moved to his area. The plaintiff details other workplace issues, and the notes indicate that he is “sick” and “not coping well”. The plaintiff returned to see Mr Nomchong on 11 November 2015, where he indicated that he was anxious all the time, and that he feels he cannot drive to work. He also indicates drinking more, and having tension headaches. He reported feeling angry at the former antagonist because of a report on the motor vehicle accident which suggested that he was at fault.
63. The plaintiff returned to work on 25 November 2015 in Mitchell, in the parcel area. He only lasted one day at work, and reported to Mr Nomchong the following day that his knee had been throbbing after his return to work, including pain all night.
64. Mr Nomchong prepared a report for the plaintiff’s lawyers on 13 December 2015. The report indicated that Mr Nomchong had been treating the plaintiff from 2 March 2015. Mr Nomchong’s initial diagnosis of PTSD had since abated. His diagnosis in the report is of adjustment disorder with ongoing depression and anxiety. Mr Nomchong notes that these symptoms have been increased by workplace conflict. Mr Nomchong’s recommendation is that counselling should continue, and that he should not be in contact with management of the Tuggeranong Depot in his graduated return to work. Mr Nomchong’s prognosis is that the plaintiff will make a full recovery from psychological symptoms if he is placed in “a safe and suitable working environment, and not subjected to any undue stress or harassment”. Mr Nomchong’s view was that:
Based upon the history provided, the nature of the psychological symptoms developed, and my clinical experience with other patients with similar circumstances, I have formed the view that [the plaintiff’s] diagnosis, which I have given earlier in this report, is due to the motor vehicle accident that happened in 2014, and the subsequent mishandling of his return to work.
65. The plaintiff presented to Mr Nomchong again on 16 December 2015. Mr Nomchong’s clinical notes indicate that he was Upset and annoyed at the treatment by Australia Post, and incensed over “injustice”. Mr Nomchong’s notes also indicate that he plaintiff was “angry”, and that he had reported getting “the jitters around motor bikes”.
66. The plaintiff presented to Mr Nomchong next on 17 March 2016. He presented with “crazy dreams”, nightmares and not sleeping well, as well as indicating that he had ankle and knee pain, and had been suffering from tension headaches. The clinical notes indicate that he is “depressed again”, and has been off work since September/October 2015.
67. Later that month, on 30 March 2016, the plaintiff was re-examined by Dr Eaton. The appointment was arranged by the plaintiff’s lawyers. The report produced by Dr Eaton indicates that a second return to work attempted in September 2015 had been unsuccessful, lasting one day due to knee symptoms. The report also notes that the plaintiff’s ability to complete domestic chores is restricted, and that his knee has an audible click. Dr Eaton’s prognosis is guarded for both the physical and psychological components of the plaintiff’s injuries, noting that it is likely that pain and dysfunction will continue. Dr Eaton believes that the plaintiff is only fit for sedentary administrative duties.
68. Dr Somasundaram also provided a report to the plaintiff’s lawyers, dated 5 April 2016. The report notes that Dr Somasundaram has been treating the plaintiff since 26 July 2014. The report contains the following opinion:
In my opinion, Trevor suffered injuries to his left sided knee, leg and ankle needing surgical intervention…He has also suffered from stress, anxiety, insomnia and harassment at the workplace…All his identified disabilities are the direct result of the motor vehicle accident on 24/7/14
…
Since Trevor had two previous accidents on the motor bike, he is extremely stressed about the thought of going back to the bike based duties, and I am of the opinion this can be detrimental to his health.
69. The plaintiff’s final appointment with Mr Nomchong was on 9 May 2016. The clinical notes indicate that the plaintiff believed at this time that his employer would soon “cut him off”. He complained of bad dreams, and being woken by knee pain at night. He also expressed “a need to get away” from all this. The plaintiff indicated that he would contact Mr Nomchong for another appointment after seeing what his employer does next. The plaintiff also had a final appointment with Woden Integrated Physiotherapy on 11 May 2016.
70. In May 2016, Australia Post ceased making workers compensation payments to the plaintiff. His workers compensation incapacity payments were suspended on 31 May 2016.
71. On 16 June 2016, the plaintiff presented to Dr Don at the Kambah Medical Centre, where he had previously seen Dr Somasundaram. The clinical notes indicate that the plaintiff presented with chronic left knee joint pain and left ankle pain, as well as adjustment disorder, and predominant anxiety. The notes indicate that the anxiety results in the plaintiff being unable to get onto a bike due to the fear of another accident. Further, the notes indicate poor sleep and palpitation. Dr Don notes that the plaintiff is fit for driving or other duties, but not suitable for work as a postal delivery officer.
72. The plaintiff and Ms Versegi relocated to Warrnambool in July 2016. On 16 September 2016, the plaintiff resigned from Australia Post as a term of an agreement bringing to an end a complaint made to the Australian Human Rights Commission on 31 December 2015.
73. The plaintiff presented as a new patient to the Warrnambool Regional Alcohol and Drug Centre Inc (the WRAD centre) upon his relocation to Warrnambool. On 23 January 2017, the plaintiff presented to Dr Devendhran Ramu of the WRAD centre, seeking a blood test for drug screening, as he was looking for work.
74. On 7 February 2017, the plaintiff obtained work with Wheelie Waste Rubbish Removal as a side lift truck driver. The plaintiff ceased working after two days, as the job required him to get in and out of a truck to empty council rubbish bins.
75. The plaintiff presented to Dr Sue Richardson of the WRAD centre on 16 February 2017. The clinical notes indicate that he presented with a history of knee injury and of a nervous breakdown. The notes indicate that the plaintiff requires eye movement desensitization and reprocessing (EDMR) in relation to anger, dreams and his family.
76. The plaintiff obtained work on 27 March 2017 with Allens Freight Company as a parcel delivery driver. The job required lifting and carrying parcels, and getting in and out of the truck to make deliveries. The plaintiff ceased this employment on 30 March 2017. The plaintiff discussed this job and reasons for cessation when he presented to Dr Richardson on 18 May 2017. The clinical notes indicate that acupuncture treatment was provided, and that he was provided Panadeine Forte.
77. In May 2017, the plaintiff was engaged by Westvic Staffing Solutions as a casual at Warrnambool Butter and Cheese factory. The plaintiff worked for only a few days, as the work required lifting 20kg boxes of cheese off a pallet and onto a table for inspection. In August 2017, the plaintiff worked for Plasta Masta as a delivery driver. This lasted only a short period as the work duties aggravated his symptoms.
78. The plaintiff presented to Dr Richardson on 4 August 2017 outlining his failure to maintain a plastering job due to the amount of heavy lifting. The clinical notes indicate the plaintiff has trouble standing for long periods, and has pain in his knee and ankle in bed. The plaintiff received further acupuncture treatment. The plaintiff presented to Dr Richardson again on 9 August 2017, indicating there was a possibility of work at a cheese factory, and that he would “give up if not for wife”. The plaintiff received further acupuncture treatment.
79. The next month, on 8 September 2017, the plaintiff presented to Dr Richardson, and indicated that he wasn’t getting anywhere. The clinical notes indicate that acupuncture provides relief for one day only, and that he has sudden pain in his knee at times. He also indicated feeling weak when he walks, and that his ankle played up when on it for too long.
80. On 26 September 2017, the plaintiff presented to Dr Richardson. The clinical notes indicate that the plaintiff doesn’t want to be prescribed antidepressants, and also that he is applying for a laundry job. The notes indicate that the plaintiff discussed with Dr Richardson why he was unable to return to delivering mail on a motorbike.
81. On 28 November 2017, the plaintiff was examined by Dr Nigel Strauss, a consultant psychiatrist. The appointment was arranged by the plaintiff’s lawyers for the purpose of a medical report. The report indicates that the plaintiff had not required any psychological treatment prior to the motor vehicle accident. The report contains the following opinion:
From a psychiatric point of view he continues to suffer from a chronic adjustment disorder with mixed anxiety and depressed mood partly as a result of his physical injuries and partly as a reaction against the way he believes he has been treated by Australia Post. He is upset about the way management coped with his injury on the day of the injury and he is upset about the alleged lack of rehabilitation provided to him by his employer. Furthermore he is upset because he is struggling to find alternative employment even though to his credit he has attempted several jobs since his injury.
82. The report also indicates that the plaintiff has “some post-traumatic stress symptoms”. The report considered that the plaintiff will struggle “in the future particularly if he does not find suitable employment”. Overall, the report’s author indicates that the disabilities were more probably than not caused by the motor vehicle accident.
83. On 28 November 2017, the plaintiff was also examined by Dr Clayton Thomas, a consultant in rehabilitation and pain medicine. The visit was also arranged by the plaintiff’s lawyers for the purpose of a report. The report indicates that the plaintiff has an injury to his left knee, hand and left ankle, which were injured in the motor vehicle accident. An aggravation of the plaintiff’s patellofemoral joint (rendering pre-existing changes symptomatic) has remained. The report recommends that the plaintiff should commence an active exercise program and wean off the Panadeine Forte in favour of over the counter analgesics. The report suggests that the residual disability is due to the left knee and to a lesser extent the left ankle. The report considers that the plaintiff is incapable of returning to anything other than semi sedentary or sedentary work. The report concluded that the plaintiff’s emotional state is more disabling than his physical state.
84. On 7 February 2018, the plaintiff presented to Dr Ramu for a disability parking form to be completed. The clinical notes indicate that the plaintiff continued to suffer from ongoing left knee pain, and that he could not bear weight.
85. On 23 February 2018, the plaintiff presented to Dr Richardson, complaining of a difficult week with unsuccessful job applications and interviews, as well as bad dreams and a feeling of being “fed up”. The plaintiff received acupuncture treatment. The plaintiff presented to Dr Richardson again on 8 August 2018 for further acupuncture treatment.
The Expert Evidence
86. The two experts gave their evidence concurrently on the second day of the trial. The experts gave their evidence topic by topic, alternatively examined and cross-examined by counsel.
Point of Impact
87. Both experts agreed that the point of impact was approximately 1 metre across the path (from left to right when approaching from the north of Mannheim Street) (T95.20-24). The experts both agreed that figure 3 on page 30 exhibit 4, being the expert report of Mr Urquhart, accurately depicted the point of impact between the two vehicles (T 97.1).
Lines of sight
88. The experts agreed that the first defendant’s line of sight was about 18 meters north along the footpath from a point on the driveway 400-500 mm before the Supra encroached on the path (T101.11-25), and along the path between the driveway and 18 meters north (subject to the B-pillar in the car) (T112.33 – T113.10). The experts agreed the line of sight was more than 18 metres at the point where the rear of the Supra was about flush with the path.
Skid Mark
89. The experts disagreed as to whether the skid mark was more probably than not left by a motorcycle in the context of the accident (T114 – T135).
The Plaintiff’s Speed
90. The experts agreed that they were not able to determine the plaintiff’s speed from the evidence of damage to the vehicles (T97.11 – 25).
91. If the skid mark was not left by the motorcycle, the experts agreed that the objective physical evidence does not permit a reliable calculation of the plaintiff’s pre-collision speed (T123.14 and T124.16). If the skid mark was left by the motorcycle, the pre-braking speed would be between 13 km/h (T124.41 – 126) and 19 km/h (based on a 2-3m skid mark) (T132.6).
The First Defendant’s Speed
92. At the point of impact, the experts agreed that the defendant was either stopped, or moving very slowly in the process of stopping (T98.12 – T99.7).
93. The plaintiff outlined in written submissions that Mr McDougall’s usual practice when reversing was to “very slowly clear a ’hump’ in the driveway of 5-6 inches caused by a tree root ‘and then let gravity take [the car] the rest of the way down the road’ [T69.15]”. (P-2 plaintiff’s submissions).
94. The plaintiff underlined that Mr McDougall was either stopped, or moving very slowly in the process of stopping, at the point of impact. (P-5; T98.12-99.7).
95. The plaintiff referred to Mr Urquhart’s “Muttart data/approach” to give a range of speeds at which the Supra was reversing at:
(a)4-5 km/h for a stopping distance of 1m;
(b)5-7 km/h for a stopping distance of 1.5m;
(c)7 – just below 9 km/h for a stopping distance of 2 meters (T144.32).
96. Further, the plaintiff submitted that a jogging speed would have been just below 9 km/h, as Mr Urquhart had stated in evidence (T144.41). The plaintiff did not address the question of the defendant’s speed during oral submissions.
97. In the defendant’s written submissions, the defendant’s outlined Mr McDougall’s usual practice in reversing, noting that he would have to clear a “hump” in the driveway. The defendants noted that the Supra is low to the ground, and that the defendant had to reverse very slowly, or his undercarriage would “bottom out” on the hump. The defendant noted that this evidence was not challenged.
98. The defendant submitted that the likelihood that the defendant reversed at a “quick jogging speed”, about 10 km/h, was “extremely improbable, if not simply impossible”. The defendants pointed to Mr Urquhart’s evidence that the defendant could not have stopped in the short distance he did if he was reversing at 10 km/h. Mr Jamieson did not dispute that assessment.
99. The defendant’s submitted that Mr McDougall’s estimated speed at the point of impact of 3 km/h should be accepted, as there is no physical evidence to contradict this assertion, and there were good reasons as to why Mr McDougall was reversing so slowly.
In oral submissions, the defendant submitted that the range of speeds Mr McDougall was doing was between 3 and 5 km/h (T169), and that this was a reasonable speed to reverse at (T170.18). The defendant further submitted that:
…he wasn't even accelerating. He had gone over the hump in his driveway and he said that, "At that point I put my clutch in and let the car roll down the gentle slope towards the road", meanwhile looking out from his window at the first possible moment and being ready to stand on the brakes if he needed to and he did at the fastest possible perception response time.
Consideration of the Issues Arising from the Expert Evidence
Allowing for “room for error” in the evidence from the plaintiff and first defendant about the distance the Supra rolled back onto the path and the final resting point, there is no significant inconsistency in the evidence as to the speed the Supra was travelling prior to the collision.
An issue to be determined is whether the motorcycle was travelling at faster than 10 km/h prior to the collision, and whether the skid mark was left by the motorcycle in the course of the accident.
The plaintiff submitted that “much of the evidence about the respective perception response and stopping times is not to the point” and the critical “analysis deals with circumstances in which the Toyota continues to move out of the driveway”. The plaintiff submitted that:
…as Mr Urquhart agreed (T 148.1), the easy way for the first defendant to have complied with his obligation to give way to users of the path was to stop the Supra at a point on the driveway where he could see about 18 meters north along the path before continuing to reverse across it.
Credit Observations in Relation to the Plaintiff
I observed the plaintiff carefully while giving his evidence and considered his answers and demeanour. I concluded that he was honest with the Court. Further, I accept and I find that he was honest when speaking with the doctors and psychologist he has seen in relation to this case. I formed a similar positive view in relation to the evidence of his wife Ms Versegi.
Skid Mark
There was a skid mark on the footpath. The defendants submit that the skid mark was left by the plaintiff’s motorcycle and is physical evidence of the plaintiff’s speed before braking. The plaintiff denies that this skid mark is his. The expert evidence as to the plaintiff’s speed is based on whether the skid mark was or was not created by the plaintiff’s motorcycle.
This question of fact must be determined on the balance of probabilities; that is, whether it is more likely than not that the skid mark was created by the plaintiff’s motorcycle.
The plaintiff denies that the skid mark is his and gave evidence that he saw the skid mark on the footpath ahead of him before the collision.
The defendants contend that this evidence should not be accepted and submit that “on the balance of probabilities it must be found that the skid mark belongs to the plaintiff’s motorcycle”. The defendant submitted that the skid mark leads to the location of the motorcycle at the point of impact and that “it is improbable in the extreme that this is simply a coincidence”.
The plaintiff submitted that I should “make a finding that the skid mark is not attributable to his bike”. This submission was made on the basis that the plaintiff was an “entirely believable witness” and that he “plainly appeared to be someone who was trying his best to be accurate in the way in which he gave evidence”.
Mr Jamieson gave evidence that “it is by no means certain that this skid mark was involved in this crash (T118.30). He also gave evidence that it was “quite possible” (T118.37).
Counsel for the defendants asked Mr Urquhart this question: (T131.1)
MR REWELL: Mr Urquhart, is it your view that it's much more probable than not that the plaintiff does own the skid mark?
MR URQUHART: Yes.
I am not satisfied on the balance of probabilities that the skid mark belongs to the plaintiff’s motorcycle for the following reasons:
(a)While the defendant submits, “it would be a remarkable coincidence if the skid mark was not left by the plaintiff’s motorcycle,” it must be said that remarkable coincidences are not unknown in the law or in life;
(b)I found the plaintiff to be an honest, credible, forthright and believable witness. He impressed me as a witness doing his best to tell the truth. At no point during his evidence did I have cause to doubt his credibility;
(c)The plaintiff gave evidence that “as I was approaching the driveway, I noticed a skid mark on the footpath” (T15.45). He also gave evidence that he had seen other motorised cycles using the footpath in that area delivering “junk mail” on the same kind of motorcycle as his (T35.30).
(d)The defendants submitted that “the prospect that the plaintiff looked down at the footpath 2 or 3 meters before he reached the point of impact and saw the said skid mark is extremely remote”. The record of interview of the first defendant on 15 September 2014, contained a question and answer (Q 47) summarised as follows on page 15 of Mr Urquhart’s report:
The Defendant described that when he first observed the Plaintiff, the Plaintiff was “…looking down to his right and he looked up and that’s when he saw me…”. The Defendant believed he observed the Plaintiff before the Plaintiff observed his vehicle.
In my view, taking into account all the evidence in this case, this is consistent with evidence given by the plaintiff that he observed the skid mark prior to the collision.
Speed
The length of the skid mark was the main factor which led to an estimate by Mr Urquhart of the plaintiff’s pre-breaking speed exceeding 10km/h. Since, for the reasons I have outlined above, I accept the plaintiff’s evidence, it follows that I find the plaintiff’s motor bike was not travelling in excess of 10km/h.
Was the first defendant negligent?
The starting point is ss 42-46 of the Civil Law (Wrongs) Act 2002 (ACT) (‘CLW Act’). These sections provide as follows:
Part 4.2 Duty of care
42Standard of care
For deciding whether a person (the defendant) was negligent, the standard of care required of the defendant is that of a reasonable person in the defendant’s position who was in possession of all the information that the defendant either had, or ought reasonably to have had, at the time of the incident out of which the harm arose.
43Precautions against risk—general principles
(1)A person is not negligent in failing to take precautions against a risk of harm unless—
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In deciding whether a reasonable person would have taken precautions against a risk of harm, the court must consider the following (among other relevant things):
(a) the probability that the harm would happen if precautions were not taken;
(b)the likely seriousness of the harm;
(c) the burden of taking precautions to avoid the risk of harm;
(d) the social utility of the activity creating the risk of harm.
44 Precautions against risk—other principles
In a proceeding in relation to liability for negligence—
(a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible; and
(b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which it was done; and
(c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in relation to the risk and is not of itself an admission of liability in relation to the risk
Part 4.3 Causation
45 General principles
(1) A decision that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the happening of the harm (‘factual causation’);
(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (the scope of liability).
(2) However, if a person (the plaintiff) has been negligently exposed to a similar risk of harm by a number of different people (the defendants) and it is not possible to assign responsibility for causing the harm to 1 or more of them—
(a) the court may continue to apply the established common law principle under which responsibility may be assigned to the defendants for causing the harm; but
(b) the court must consider the position of each defendant individually and state the reasons for bringing the defendant within the scope of liability.
(3) In deciding the scope of liability, the court must consider (among other relevant things) whether or not, and why, responsibility for the harm should be imposed on the negligent party.
46 Burden of proof
In deciding liability for negligence, the plaintiff always bears the burden of proving, on the balance of probabilities, any fact relevant to the issue of causation
Standard of Care
In my view, the first defendant was, or ought reasonably to have been, “in possession of information” as submitted by the plaintiff as follows:
(a)The shared path was regularly used by mail delivery officers on motorcycles, cyclists and pedestrian;
(b)Those users were likely to be of all ages;
(c)Those users might be distracted: see McClean v Tedman (1984) 155 CLR 306 at 311; see also Baker v MacKenzie [2015] ACTSC 272; 72 MVR 421 (Baker) at [32];
(d)The speeds of motorcyclists and/or cyclists travelling along the path from time to time would vary;
(e)The foliage adjacent to the driveway was such that it would obscure visibility of his vehicle to users of the path. The first defendant knew that the foliage reduced visibility from the driveway up the road (T69.37-41);
(f)He was able to bring the Supra to a stop such that it did not encroach upon the path while he had visibility through the passenger window in the direction of 53 Mannheim Street of approximately 18 meters. To the extent that the first defendant sought to withdraw from his concessions to this effect in re-examination (T83.40), in my view this was unpersuasive and inconsistent with the photographs taken by the first defendant and Figure 4 at page 36 of exhibit 4. This attempt to withdraw his concessions in my view reflected adversely on the credibility of this aspect of his evidence.
(g)In the event of collision between a motor vehicle and a motorcyclist, cyclist or pedestrian, there was a significant risk of injury to that motorcyclist, cyclist or pedestrian.
In the circumstances of this case, the first defendant owed to the plaintiff a duty of care. He was engaged in an action which was dangerous to any passing pedestrian, cyclist or motorcyclist on the footpath. The risk associated with that action could and should have been minimized by stopping the vehicle and taking advantage of the available visibility before any part of the Supra encroached on the path.
Precautions against risk
The relevant “risk of harm” included that as the first defendant’s vehicle was reversing from the driveway, across a path, a user of the path approaching from the north might collide with the exiting vehicle.
That risk was foreseeable, in that it was a risk of which the first defendant knew or ought to have known: see CLW Act s 43(1)(a); see also Goreski v de Costa [2014] ACTSC 233 at [19], where Murrell CJ stated that “…a reasonably prudent driver would have expected that a bicycle may travel at a moderate speed along the bicycle lane…”. The plaintiff has established actual or constructive knowledge in the first defendant of the risk of harm. Here, the first defendant knew or ought to have known:
(a)His view along the path was at least partially obscured by the foliage (T69.37-41);
(b)The path was for the use of, and frequented by, postal workers on motorcycles, cyclists and pedestrians;
(c)Reversing out in those circumstances might lead to a collision; and
(d)He was required to give way to users of the path (T75.33)
That risk was not insignificant, as the path ran cross the driveway, and there was at least a partial obstruction of the view from the driveway to path users approaching from the north.
The precautions (see CLW Act s 43(1)) which would have been taken by a reasonable person in the position of the first defendant include:
(a)To bring the Supra to a stop prior to any part of the Supra encroaching on the path;
(b)To sound the horn before exiting past the obscuring bushes; and
(c)To give way to path users,
Such precautions were warranted under s 43(2) of the CLW Act because:
(a)If those precautions were not taken, there was the prospect of collision and injury to passing pedestrians, joggers, cyclists and postal motorcyclists;
(b)If there was a collision between a pedestrian, jogger, cyclist or a postal motorcycle and a vehicle, there was a high likelihood for that to result in serious injury of the pedestrian, jogger, cyclist or postal motorcyclist;
(c)The implementation of these precautions cannot be said to be an onerous burden;
(d)There was no relevant social utility in the first defendant’s driving insofar as it gave rise to the risk of harm; and
(e)Also relevant is that the requirement that the first defendant give way to the plaintiff was mandated by rule 74 of the Australian Road Rules (ARR). Additionally, those rules required that a driver not reverse a vehicle “unless he can do so safely”.
The determination in any case is not resolved by asking whether the relevant conduct was or was not prohibited by one of the ARR: Sibley v Kais (1967) 118 CLR 424 at 427; Verryt v Schoupp [2015] NSWCA 128; 70 MVR 484 at [4]. Nevertheless, the fact that particular conduct is prohibited may be a factor: Kollas v Scurrah [2008] NSWCA 17; 49 MVR 437 at [76]; Sharpe v Gordon [2006] NSWCA 347 at [5]-[6]; Penrith City Council v East Realisations Pty Ltd (in liq) [2013] NSWCA 64; 63 MVR 180 (Penrith City Council) at [4], [53]-[54].
In my view, in the present case the existence of r 74 is a factor. A reasonable person in the position of the first defendant would have realised that he was required to give way to persons on the shared path immediately adjoining his boundary. The first defendant acknowledged that he knew he was required to give way (T75.33):
Was it your understanding that if you were reversing out of the driveway, you were required to give way to people or vehicles that were travelling on the footpath?---Yes.
The first defendant did not take these precautions to address the risk that a path user would collide with his vehicle. The first defendant was, in my view, negligent within s 43 of the CLW Act.
The duties of a driver of a motor vehicle to other users of the roadway (in that case including pedestrians) were summarized by Meagher JA (Emmett and MacFarlan JJA agreeing) in Marien v Gardiner [2013] NSWCA 396; 66 MVR 1 at [33]-[37] (Marien):
33.The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.
34.The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47-48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy[2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).
35.Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], "reasonable attention to all that is happening on and near the roadway that may present a source of danger". That in turn requires "simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path".
36.The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
37.Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the "limits of visibility and control" so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision.
That passage was adopted with approval by the NSW Court of Appeal in Warth v Lafsky [2014] NSWCA 94; 66 MVR 445 at [55] (Warth). These cases involved the application of an objective test set out in section 5B of the Civil Liability Act 2002 (NSW), in terms similar to the ACT provision and the summary provided in Marien was adopted by Mossop M/AsJ (as his Honour then was) in Baker and Hendricks v El Dik (No 4) [2016] ACTSC 160; 76 MVR 310.
I take into account that whether the driver has breached his or her duty of care is to be addressed prospectively, not with the benefit of hindsight, and by reference to what a reasonable driver would have done, if anything, in response to any foreseeable risk of injury to others: NSW v Fahy [2007] HCA 20; 232 CLR 486.
I also take into account that a driver is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant, and a reasonable person would have taken those precautions in those circumstances.
It is critical in answering this question that I do not determine the question on the basis of hindsight. Whether a driver took reasonable care is not to be determined by asking whether some other action on the driver’s part could have avoided the accident; with the benefit of hindsight, almost all motor accidents are avoidable: Derrick v Cheung [2001] HCA 48; 181 ALR 301.
The central issue is, looking prospectively and not on the basis of hindsight, what a reasonable driver in the position of the first defendant, armed with the first defendant’s actual knowledge of the use of the path, and reflecting reasonably on the potential hazards associated with reversing across that path, would have done in response to the risk. In appropriate cases, the perception of risk and formulation of an appropriate response may be no more than a matter of common sense.
The matter of Warth considered a collision between a car and a child on a scooter. The Court at [56] confirmed that drivers must take into account the possibility of careless behaviour by pedestrians:
Notwithstanding the conclusion in Derrick v Cheung [2001] HCA 48; 181 ALR 301, it is accepted that drivers must take into account the possibility of careless behaviour by pedestrians and the fact that they are in charge of frequently lethal machines: Stocks & McDonald Hamilton Co Pty Ltd v Baldwin (1996) 24 MVR 416 (at 418) per Mahoney P; Dungan v Chan [2013] NSWCA 182; (2013) 64 MVR 249 (at [16] - [17]) per Emmett JA (Ward and Gleeson JJA agreeing).
Causation
Section 45 of the CLW Act requires that I address two matters – factual causation and scope of liability.
The first question is answered by consideration of the question whether the plaintiff would have suffered harm “but for” the negligence of the first defendant.
On the balance of probabilities, the plaintiff would not have suffered the harm had the first defendant taken the precautions identified above. Therefore, the plaintiff in my view has satisfied the “but for” causation requirement.
As to the second question, s 45(3) requires that the Court explicitly consider and explain in terms of legal policy why, in the exercise of an evaluative judgment, responsibility for the plaintiff’s injury should be visited upon the first defendant. In my view, this question should be answered in favour of the plaintiff. The legal policy considerations inherent in a potentially lethal motor vehicle in the process of reversing across a footpath are obvious. Drivers must take into account the possible use of the footpath by others.
Was there Contributory Negligence on the Part of the Plaintiff?
The defendants submitted that should I find the first defendant negligent, there should be a reduction in damages because of the contributory negligence of the plaintiff.
The defendants bear the onus in establishing both the plaintiff’s breach of duty, and the causal connection between that breach, and the harm suffered by the plaintiff.
The plaintiff’s submission on contributory negligence is that the only basis on which he might reasonably be said to have breached the relevant duty was in failing to keep a sufficient lookout.
In the event that I find that the plaintiff failed to take reasonable care, then his damages are to be reduced to the extent that the Court considers just and equitable.
The defendants submits that there was contributory negligence in:
(a)Failing to keep a proper lookout;
(b)Failing to take adequate precautions for his own safety;
(c)Travelling along the path at a speed that was excessive in the circumstances;
(d)Failing to apply the brakes on the motorcycle soon enough/so as to avoid a collision
(e)Failing to otherwise manage or control the motorcycle so as to avoid a collision; and
(f)Riding in a manner contrary to r 288 of the ARR.
The determination whether a person has been guilty of contributory negligence is to be determined objectively, and independently of the personal idiosyncrasies of the plaintiff.
That determination must include consideration of the fact that the plaintiff was entitled to rely upon the first defendant to observe the relevant road rules. In addition to r 74 of the ARR, this included the obligation on the first defendant not to drive his vehicle in reverse unless he could do so safely (r 296 ARR).
Allegation (f) – “Illegality”
Rule 288(5A) of the ARR was not in force as at the date of the accident. The defendants instead rely on s 32 of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT) in asserting the plaintiff was not permitted to ride his motorcycle on the path because his speed exceeded 10km/h.
This allegation relies on the “illegality” of the use of the motorcycle on the path in the circumstances.
I am not satisfied on the balance of probabilities that the plaintiff’s speed did exceed 10 km/h.
In any event, there is no general principle which denies to a person who is engaged in an unlawful act the protection of the general law imposing upon others, duties of care for his or her safety. As McColl JA said in Penrith City Council at [4]:
…breach of a statute or regulation is not conclusive as to the performance of the duty owed to another; the common law duty to act reasonably in all the circumstances is paramount: Sibley v Kais [1967] HCA 43; (1967) 118 CLR 424.
In the present case, the plaintiff was riding at a speed, and in a manner, consistent with conventional path used by cyclists and postal delivery motorcycles. There is no doubt cyclists and postal workers using motorcycles were permitted to use the path at the time of the accident. It must be stated that if the motorcycle had exceeded 10 km/h, that fact alone would not disentitle the plaintiff to damages.
Allegations (a) – (e): Speed, Lookout, Failure to Control
I am not satisfied that the plaintiff’s speed exceeded 10 km/h. I am not satisfied on the balance of probabilities that the skid mark on the path was in fact left by the plaintiff’s motorcycle.
The length of the skid mark was the main factor which led to an estimate by the experts, in particular by Mr Urquhart, of the plaintiff’s pre-breaking speed exceeding 10 km/h.
I find that the plaintiff failed to keep a proper lookout because of the plaintiff’s evidence that he was within two metres of the vehicle when he first perceived it (T15.17). I therefore make a finding of contributory negligence on this basis.
To what extent should damages be reduced by reason of contributory negligence
The principles of apportionment where there has been a finding of contributory negligence by the plaintiff are well settled. These principles require a comparison of culpability: see Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 493-494 (Podrebersek). The relevant matters in this case are:
(a)The first defendant was required to give way to vehicles already on the footpath and to reverse only when it was safe to do so;
(b)The first defendant knew he was required to give way to people, cyclists and postal motorcyclists using the path;
(c)The first defendant had lived at the property for 11 years as at the date of the accident and was aware the foliage adjacent to the driveway reduced visibility of the path to the north. He detailed it in evidence as a “hot mess” and further elaborating that it was “unkempt but manageable”.
(d)It was possible for the first defendant to stop the vehicle at a point on the driveway where it did not encroach on the path at all but afforded him a view of 18-20 meters along the path to the north;
(e)Instead, the first defendant first noticed the plaintiff at the point when the vehicle was moving across the footpath;
(f)As the first defendant agreed, he was definitely partly at fault for the accident and conceded it was possible he told the plaintiff immediately after the collision, “I didn’t see you mate”;
(g)The first defendant should have been aware that oncoming path users might be distracted;
(h)The first defendant was driving a motor vehicle – capable of inflicting really serious injury to a pedestrian, cyclist or motorcyclist with whom it might collide. His want of care occurred while he was in charge of a vehicle with a far greater capacity to cause damage than the plaintiff; and
(i)The plaintiff’s ‘want of care’ was being distracted.
In Podrebersek, the Court at 493-494 underlined the following:
A finding on a question of apportionment is a finding upon a "question, not of principle or of positive findings of fact or law, but of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinion by different minds": British Fame (Owners) v. Macgregor (Owners)(1943) AC 197, at p 201.
In the present case, the degree of departure from a standard of reasonable care was very significantly greater on the part of the first defendant than on the part of the plaintiff as set out above. In my view, in these circumstances, I consider that it is just and equitable to reduce the damages recoverable for the wrong by 35%
Quantum of Damages
Broadly, there is a difference of approximately 200,000 in total damages as between the damages outlined in submissions for the plaintiff and the defendants. The plaintiff seeks $812,376.65. The defendants submit $607,750 before reduction for contributory negligence. The greater proportion of this difference is located in the question of future economic loss as detailed below.
Background
As discussed above, the plaintiff is now 52 years of age. As at the date of the accident, 24 July 2014, the plaintiff had worked for 25 years as a postal delivery officer with Australia Post.
The plaintiff intended to continue to work with Australia Post until 67 to 70 years of age (T11.31).
The plaintiff had been involved in two earlier accidents in the 1990s, neither led to him sustaining any significant injury and he lost no time off work.
Following the accident the plaintiff was ultimately diagnosed with a fracture to the left tibial plateau and a soft tissue injury to his ankle. He also sustained an injury to the fourth and fifth fingers of his left hand.
He was unable to return to work and required physiotherapy and hydrotherapy before ultimately being referred to Dr Damian Smith for treatment for his ongoing left knee problems.
He first saw Dr Smith on 4 December 2014. He had an ultrasound guided injection of steroid into his left knee on 8 January 2015, without any beneficial effect. Following review by Dr Smith he underwent surgery on 16 February 2015. He achieved no lasting benefit from that surgery.
Following the accident the plaintiff developed significant psychological symptoms and was referred to Mr Nomchong. In his report of 13 December 2015, Mr Nomchong said:
As a consequence [of the accident and subsequent accident-related difficulties in the workplace], Mr Steed has developed Post Traumatic Stress Disorder from the accident itself (now resolved) and Adjustment Disorder with Anxiety and Depression as a result of the way he was treated after the accident and the subsequent effect the accident has had on his quality of life.
Mr Nomchong considered that the plaintiff’s condition of PTSD had abated, but the plaintiff suffered from Adjustment Disorder which was likely to persist unless the Plaintiff was able to achieve a safe and suitable working environment.
The plaintiff saw Dr Garth Eaton on 20 May 2015 at the request of his solicitors. Dr Eaton considered the plaintiff had suffered a fracture to his left tibial plateau and soft tissue injuries to the left knee and lower leg and left ankle and the 4th/5th fingers of the left hand. He also diagnosed associated symptoms of stress, anxiety and depression.
Dr Eaton considered that the plaintiff was unfit for any heavy physical work involving heavy lifting, prolonged standing, extensive walking, negotiating stairs, steep slopes, hills or ramps. He was also unfit for motorcycle riding: Exhibit 1, page 17.
Dr Eaton reviewed the plaintiff in April 2016. Following that consultation Dr Eaton confirmed his previous diagnosis and prognosis and said:
Prognosis remains guarded for both the physical and psychological components of his injuries. It appears that the psychological effects have been major and Mr Steed continues to suffer with nightmares…
He has ongoing physical symptoms associated with his knee injury…
Consequently it is likely that pain and dysfunction will continue as well as the psychological difficulties, precluding him from returning to his pre-injury duties as a Postal Delivery Officer. He is also unfit to do a walking postal delivery beat. He would be fit for sedentary administrative duties only.
The plaintiff was seen by Dr Strauss, psychiatrist, on 28 November 2018. Dr Strauss considered that the plaintiff continued to suffer from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, partly as a result of his physical injuries and partly as a reaction against the way he understood he had been treated by Australia Post. Dr Strauss considered the plaintiff also displayed some symptoms of posttraumatic stress. Dr Strauss said:
I believe that this man will struggle in the future particularly if he does not find suitable employment. If he does find suitable employment his prognosis is better.
The plaintiff saw Dr Clayton Thomas, consultant in rehabilitation and pain medicine, on 11 December 2017.
Dr Thomas considered that the plaintiff was restricted from working in activities that involved kneeling, squatting, climbing up and down ladders or stairs frequently. Work should be semi-sedentary or sedentary. Dr Thomas considered that the plaintiff’s emotional state was more disabling than his physical state.
The defendants have not served any medical evidence. There is no significant medical issue in the case (T200.7). The plaintiff has seen both a psychiatrist and an orthopaedic surgeon at the request of the defendants. Those reports have not been served. It can be inferred that those reports would not assist the defendants’ cause: Jones v Dunkel (1959) 101 CLR 298. I infer that their evidence would not have assisted the defendants.
General Damages
The plaintiff is entitled to general damages.
Before the accident, the plaintiff led a reasonably active life and enjoyed playing golf, going on outings and driving trips with his wife, pushbike riding and occasionally playing tennis. The plaintiff is now limited from pursuing many of these recreational activities by reason of his physical injuries.
Walking is uncomfortable for him, as are activities which require him to be on his feet for significant periods of time. He has continually suffered from anxiety and his emotional ability has caused significant strain in his relationship with his wife. The plaintiff has made numerous attempts to find work in Warrnambool but to date has been unsuccessful.
It is submitted by the plaintiff that an appropriate amount of general damages that reflects the plaintiff’s physical injuries, emotional injuries and loss of amenity of life, should be $150,000.
The plaintiff is entitled to interest on that component of the general damages relating to the past. It is also submitted by the plaintiff that allowing 50% of the damages to relate to the past at a rate of 2% for 4 years arrives at $6,210. The defendants submits the sum of $95,000 is appropriate for general damages before reduction for contributory negligence. Therefore, the defendants further submit interest on general damages at $4,200.
In my view, the figures establish an appropriate range for general damages. In my view justice between the parties is served by an award of $135,000.
Interest on half of this figure at rate of 2% per year for four years is $5,400 (0.02 x 4 x 67,500).
Past out-of-pocket Expenses
The plaintiff’s past out of pocket expenses are agreed with the defendants. I will allow the amount of $48,191.65 as claimed.
Future out-of-pocket Expenses
The plaintiff submits that there is a likelihood of some future medical treatment. Dr Thomas recommends an active exercise program, and noting the plaintiff’s continued psychological disability it is likely that there will be future expenses related to treatment by a psychologist/psychiatrist and perhaps periodic General Practitioner attendances.
The plaintiff submits an allowance by way of a buffer for future medical expenses should be in the sum of $20,000. The defendants propose $10,000, again subject to an overall reduction for contributory negligence.
In my view a buffer of $15,000 is appropriate in the plaintiff’s case.
Past and future Domestic Assistance
The plaintiff is entitled to damages for past domestic assistance. The plaintiff and the defendants have agreed to an allowance of 4 hours per week at $35 p/h for 78 weeks following the accident – an agreed allowance of $10,920.
The plaintiff further submits that there may be a requirement of future domestic assistance. The plaintiff submits an appropriate allowance for future domestic assistance by way of a buffer for $20,000. The defendants submit that no sum is appropriate under this heading of damages. I am satisfied there will be a need for future assistance. I am not persuaded that a significant sum for a buffer is appropriate, and I allow a sum of $5,000 as a buffer.
Past Economic Loss
The plaintiff is entitled to damages for past economic loss. At the time of the accident the plaintiff was earning $1035 net per week (after tax). The plaintiff claims from the date of the accident until 11 May 2015, the day upon which he attempted to return to work. That equates to 39 weeks, resulting in a claimed figure of $40,365.
The plaintiff then claims from 12 May 2015 to 22 June 2015, a period of five weeks before the plaintiff’s second attempted return to work. That equates to five weeks, resulting in a claimed figure of $5,175.
The plaintiff’s second return to work lasted approximately 6 weeks. The plaintiff makes no claim during that period.
The plaintiff claims from 7 August 2015 to 9 November 2015 (the date of the plaintiff’s third attempted return to work). That results in a claim for 13 weeks, equating to $13,455.
The plaintiff claimed from 10 November 2015 to date of the hearing. During that period the plaintiff has been unemployed. The plaintiff claims for $153,180. This should be adjusted to take into account the time that has elapsed since the hearing and the date of this decision. As at 22 February 2019, there has been a total of 171 weeks since 10 November 2015. I will therefore allow $176,985 for this period.
Accordingly, the plaintiff’s total claim for past economic loss damages is $235,980. This amount is agreed by the defendants again subject to reduction for contributory negligence.
The plaintiff claims interest on past economic loss excluding the amount already received by way of workers compensation payments, at $100,000 at 3% for 2.5 years – resulting in a claimed figure of $7,500. This interest is agreed to by the defendants subject to a reduction for contributory negligence. This amount should be adjusted to take into account the time that has elapsed since the hearing and the decision of this judgment. The resulting figure should be amended to $9000 ($100,000 at 3% for 3 years).
Future Economic Loss
The plaintiff is currently unemployed. He has made numerous unsuccessful applications for employment in Warrnambool. I must make a practical assessment of the likelihood of the plaintiff obtaining employment. In Nominal Defendant v Livaja [2011] NSWCA 121 at [65], it was underlined that:
Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation.
Having regard to the evidence, the plaintiff’s prospects for obtaining employment are very limited.
The plaintiff will have to compete with able bodied persons for employment for which he is suited – a process in which he could be unsuccessful: see Wade v Allsop (1976) 10 ALR 353 at 361. The defendants submit that on the basis of $300 per week to age 67, less 15% for vicissitudes, a total of $158,941 is arrived at. The plaintiff submits on the basis of $500 per week, a 50% reduction of earning capacity, less 15% for vicissitudes, a sum of $264,092 is appropriate in this case.
The defendants “acknowledge that [the plaintiff] had treatment up till 2016, and since then has made a proper effort to get some employment”. As counsel for the defendants emphasised, “these assessments are necessarily intuitive” and there is “no science that can be applied, certainly not in this case, and in most cases no science can be applied to it”.
In my view, between 30% ($300) and 50% ($500) represents the appropriate range of future economic loss in the plaintiff’s case. Further, in my view, in light of the clear evidence of the plaintiff’s conscientious and unsuccessful efforts to obtain employment in Warrnambool, I find that the plaintiff lost 40% of his earning capacity, which amounts to $400 per week. This amount is realistic and takes into account his current and continuing circumstances, and is the just approach to adopt on the evidence in the plaintiff’s case.
Allowing for $400 per week, on the 3% tables, to the age of 67, less 15% for vicissitudes, results in a total of $203,422 (598.3 x $400 x 0.85).
Fox v Wood
Taxation payments have been made by Australia Post in respect of weekly compensation which the plaintiff has received. In accordance with Fox v Wood (1981) 148 CLR 438; 55 ALJR 562, the plaintiff is entitled to be compensated for that amount as he will have to repay it to his former employer. Allowing 20% of weekly compensation payments arrives at a figure of $20,000 which the plaintiff claims. This sum is agreed by the defendants.
Superannuation
The plaintiff is entitled to damages for loss of superannuation benefits. The total amount of past and future economic loss is $439,402, resulting in $48,334.22 for the loss of superannuation benefits ($439,042 x 0.11).
Summary of Damages
The damages that will be awarded to the plaintiff are summarised in the following table.
| General Damages | $135,000 |
| Interest on General Damages | $5,400 |
| Out of Pocket – Past (Agreed) | $48,191.65 |
| Out of Pocket – Future | $15,000 |
| Past Domestic Assistance (Agreed) | $10,920 |
| Future Domestic Assistance | $5,000 |
| Past Economic Loss | $235,980 |
| Interest on Past Economic Loss (Agreed) | $9000 |
| Future Economic Loss | $203,422 |
| Fox v Wood (Agreed) | $20,000 |
| Superannuation | $48,334.22 |
| Subtotal | $736,248.87 |
| Reduction for Contributory Negligence of 35% | $257,687.10 |
| Award of Damages | $478,561.77 |
The plaintiff is therefore entitled to a judgment of $478,561.77.
Order
I make the following orders
(a)Judgment for the plaintiff in the sum of $478,561.77.
(b)The defendants are to pay the plaintiff’s costs of the proceedings.
I will hear the parties if any alternative costs order is sought within 14 days.
| I certify that the preceding two-hundred and one [201] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: |
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