Wilkie v Redford

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IN THE SUPREME COURT  

OF QUEENSLAND

No 373 of 1998

Brisbane

Before the Hon Mr Justice Muir

[Wilkie v Redford & Anor]

BETWEEN:

LYNETTE ELIZABETH WILKIE

Plaintiff
AND:

KENT REDFORD

First Defendant
AND:

GREGORY JOHN WILSON

Second Defendant

REASONS FOR JUDGMENT - MUIR J

Judgment delivered 4 June 1999

CATCHWORDS:     TORTS - negligence - contributory negligence of pedestrian - pedestrian injured by motor vehicle - liability of driver - whether failure to keep look out.

Counsel:Mr B. Hall QC and Mr P Woods for the plaintiff

Mr K.S. Howe for the defendants

Solicitors:Phillips Fox as town agents for Attwood Marshall Lawyers for the plaintiff

McInnes Wilson and Jensen for the defendants

Hearing dates:   17, 18, 19, 20 May 1999

IN THE SUPREME COURT

OF QUEENSLAND

No 373 of 1998

Brisbane

Before the Hon Mr Justice Muir

[Wilkie v Redford & Anor]

BETWEEN:

LYNETTE ELIZABETH WILKIE

Plaintiff
AND:

KENT REDFORD

First Defendant
AND:

GREGORY JOHN WILSON

Second Defendant

REASONS FOR JUDGMENT - MUIR J

Judgment delivered 4 June 1999

1  The plaintiff was struck by a Mazda Station Wagon (“the Mazda”) driven by the second defendant as agent for the first defendant at about 7.30pm on 7 August 1993 when she was crossing the Nicklin Way at Warana.  At the place of the accident the Nicklin Way is a divided highway with two traffic lanes and a parking lane (delineated by a white line) on each side of a median strip.  Weather conditions were fine, the traffic light and the area in question was relatively well lit by street lighting.

2  The Mazda, a Holden Torana driven by a Mr Rickard and a Honda Sedan driven by a Mr Crerar had been moving south in close proximity to each other for some minutes before the accident. Immediately prior to the accident, the Honda was in the inside lane (nearest the median strip) and the Mazda was in front of the Torana in the outside lane (nearest the kerb). The Honda was slowly overtaking the Mazda. Mr Crerar could not say with certainty where his vehicle was positioned in relation to the Mazda when he first saw the plaintiff.  He thought that the Mazda was either beside his car or a little behind it.  Mr Rickard’s recollection in that regard was also somewhat uncertain. It was that just before the collision the Mazda and the Honda were virtually level with each other with the Honda having part of its length ahead of the Mazda.

3  The Honda braked first and the Mazda then drew ahead and struck the passenger side of its front.

4  Mr Rickard said that his attention was first drawn to the presence of the plaintiff  by a northbound car blowing its horn. He observed the plaintiff, then some 200 metres ahead, run across the northbound lane whilst looking behind her. He said that she continued to run across the median strip and into the path of the southbound vehicles.

5  Mr Crerar said that he first saw the…

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Details
Case
[1999] QSC 119
Decision Date

CaseChat Overview and Summary

In the matter of Wilkie v Redford, the plaintiff, Wilkie, brought an action against the defendant, Redford, seeking compensation for personal injuries sustained in a motor vehicle accident. The primary focus of the case was on the extent of Wilkie's physical impairments and disabilities as a result of the accident. The evidence presented included testimonies from medical experts and eyewitness accounts that highlighted the plaintiff's physical condition and limitations following the accident.

The court was required to determine the extent and causation of Wilkie's injuries, particularly whether these were attributable to the accident or other factors such as substance abuse or pre-existing conditions. The reliability and credibility of the medical evidence, particularly the psychiatric evaluations by Dr. Hutchinson and Dr. Reddan, were central to this determination. The court also needed to assess the impact of the injuries on Wilkie's ability to walk and perform daily activities, as well as the extent of Wilkie's economic loss due to the injuries. This involved weighing the medical opinions against the observations of third parties and the plaintiff's own assertions.

The court found that while there was significant evidence of severe brain damage and associated disabilities, the plaintiff's exaggeration of symptoms could not be entirely discounted. The court placed significant weight on the early medical records and the orthopaedic evidence, which suggested that the plaintiff could walk with assistance, albeit with difficulty. The court also considered the testimonies of the plaintiff's parents and a carer, Mr. Jones, who reported limited instances of the plaintiff walking. Ultimately, the court concluded that Wilkie's ability to walk had diminished, but primarily due to voluntary lack of use rather than a complete inability. The court also found that Wilkie's pre-existing substance use did not significantly contribute to her current condition.

In conclusion, the court determined that Wilkie's injuries were causally linked to the accident, and awarded damages reflecting the extent of her disabilities and economic loss. The court ordered the defendant to compensate Wilkie for her injuries, taking into account her ability to manage without a helper for extended periods, despite her physical limitations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence of those witnesses was not the subject of challenge (except to the extent that counsel for the defendants sought to establish that some of the opinions expressed were based in whole or in part on the oral history given by the plaintiff) and, generally speaking, I accept all of it.Psychiatric evidence There was evidence from two psychiatrists, Dr Reddan and Dr Hutchinson. In a report of 16 May 1995. Dr Hutchinson expressed the opinions that -(a)the plaintiff had quite severe brain damage;(b)the brain damage was consistent with having been caused by an accident and that “The brain damage is largely proportional to the length of loss of continuous memory which apparently was some considerable time”;(c)the plaintiff’s everyday activities are severely restricted. She is wheelchair bound, has suffered considerable intellectual loss, has a very poor memory and a very restricted social life. “There is quite a lot of severe frontal lobe damage which tends to affect judgment, forward planning and appropriateness of behaviour and ... her judgment has been seriously affected”;(d)it was doubtful that the plaintiff would be able to be employed. In a report of 1 December 1998, Dr Hutchinson reported having seen the plaintiff again on 26 November 1998. In that report he expressed the opinion -“I put her rather indifferent approach to her serious problems, as being due to frontal lobe damage, rather than a hysterical presentation, although I could not rule out the latter. There does not seem to be any Affective Disorder now, she is not depressed or particularly anxious, nor does she have any psychotic symptoms. I was not convinced by her general presentation of her appreciation of current events.However, I have found that the main question has not been answered. I wonder why she is unable to walk. There is no orthopaedic reason as to why she cannot walk, apart from the effects of disuse atrophy, but I note that there is good evidence that she has severe shearing damage to the frontal lobes, which of course contain the motor cortex, in her original injury. I think a neurological opinion is essential for coming to a conclusion about the degree of her disability in relation to the accident.” In his oral evidence, Dr Hutchinson confirmed his scepticism as to the existence of disabilities to the extent of those reported by the plaintiff. He said, referring to his second examination of the plaintiff-“Her ability to function on the second occasion was surprisingly good and yet she still insisted that she couldn’t walk, which really was out of context with her usual abilities in most other areas. ”He said that he wanted a neurological examination to tell him whether the plaintiff’s muscle wasting and disuse atrophy was “voluntary or involuntary” but that none had been forthcoming. In cross-examination he expressed the view that if the plaintiff was in fact walking as was asserted on behalf of the defendants, then the plaintiff’s disability was probably more like 10 percent rather than 65 percent. He concluded that the plaintiff was exaggerating her problems.

Decision

Reasons for decision

I have not overlooked the evidence of Miss York. I do not regard her observations of the plaintiff’s movements as reliable. She was antagonistic to the plaintiff and I thought her inclined to exaggerate.Conclusions as to the plaintiff’s mobility The evidence is that the plaintiff used the Kawana Shopping Centre consistently since her accident. I am confident that Mrs Drosdeck also made careful observations of her. It is significant that the reports of the plaintiff’s ability to move without use of her wheelchair are limited to the matters referred to above and are confined to 1994 and 1995. In the absence of a more recent neurological investigation, there is no medical evidence which is available to assist in a definitive objective determination of the plaintiff’s present and future inability to walk. There is however a strong body of evidence supportive of the plaintiff’s contentions. I refer in particular to the early medical records and to the orthopaedic evidence which relies in part on early neurological investigations. Dr Winstanley’s evidence, particularly that in relation to the plaintiff’s lack of muscle tone, is strongly suggestive of a capacity on the part of the plaintiff to walk to only a very limited extent. There is also the evidence of the plaintiff’s father and mother and that of a carer, Mr Jones. Subject to the qualification expressed below, I accept the evidence of Mr Jones, who has cared for the plaintiff since about September 1996 (with a gap between October 1996 and December 1997) that he has not seen the plaintiff walk. I accept the evidence of her parents to that effect also, subject to the same qualification. It is quite possible that these persons have not made any mental note of occasions on which the plaintiff has stood for various purposes and even taken a few steps. It is also possible that the plaintiff has been concerned, in their presence, to maximise the extent of her disability. Relying on the medical evidence and eyewitness reports, I find that the plaintiff retained the ability to stand for short periods and to walk (with difficulty) for a few metres aided by another person or persons or assisted by holding on to an appropriately placed walking aid or other object. If (which I doubt) that ability has diminished of recent times, it is as a result of voluntary lack of use by the plaintiff of the muscles associated with such movement. The plaintiff also retained the ability to transfer herself to and from her wheelchair. She still has that ability. It is significant to my mind, that since the accident the plaintiff has been able to manage at home for extensive periods without the assistance of a helper when none has been available. There is no evidence that her condition will relevantly deteriorate, except as part of the normal ageing process. It was contended on behalf of the defendants that the accident had not brought about a vast difference in the plaintiff’s general health and enjoyment of life, having regard to her social difficulties prior to the accident and abuse of alcohol and marijuana. I find that the plaintiff, not infrequently, did drink to the point of drunkenness prior to the accident, particularly when she was in receipt of her social security cheques. I find also that she has been a fairly regular consumer of marijuana, both before and after the accident. But the evidence does not establish alcohol or drug consumption to a point where the plaintiff suffered, or was likely to suffer in the short or medium term, permanent mental or physical damage from substance abuse. I am not able to make a finding as to whether the plaintiff is now drug dependent.Economic loss

Ratio Decidendi

Legal Principle Established

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