Wilson v Tomley
[2004] QDC 37
•16/3/04
CITATION:
Wilson v Tomley & Another [2004] QDC 037
PARTIES:
ROBERT NOEL WILSON
Plaintiff
v
DENNIS TOMLEYFirst defendant
AND
ALLIANZ AUSTRALIA INSURANCE LIMITED
(ACN 000 122 850)
Second Defendant
FILE NO/S:
754/02
DIVISION:
Civil Jurisdiction
PROCEEDING:
Trial
ORIGINATING COURT:
Brisbane
DELIVERED ON:
16/3/04
DELIVERED AT:
Brisbane
HEARING DATE:
15/3/04 & 16/3/04
JUDGE:
Forde DCJ
ORDER:
1J Judgement for the Plaintiff in the sum of $32,201.48
CATCHWORDS:
Negligence – collision at Intersection controlled by lights – Plaintiff turning across traffic – duty of oncoming driver.
Cheryl Douise Pendrick v Hans Juergen Kuhn [1991] ACTSC 94.
Scaffidi v Kuehn (1985) 3 MVR 252.
Sibley v Kais (1967) 118 CLR 424.
Thompson v Mumford (1990) 11 MVR 441.
COUNSEL:
Mr Lee for the Plaintiff
Mr Lynch for the 1st & 2nd Defendants
SOLICITORS:
Goodfellow & Scott for the Plaintiff
McInnes Wilson Lawyers for the 1st and 2nd Defendants
The Plaintiff in this action is Robert Noel Wilson. He sues the First Defendant and the Second Defendant for damages for personal injuries as a result of the alleged negligence of the First Defendant. Both liability and quantum are in issue.
The Plaintiff was injured when the vehicle which he was driving, a Mitsubishi Lancer, collided with a Ford utility driven by the First Defendant and insured by the Second Defendant.
The accident occurred at the intersection of Wickham Terrace and its extension College Road, and Gregory Terrace in Brisbane. The plaintiff was attempting to execute a right turn into Gregory Terrace from Wickham Terrace having travelled in a westerly direction along Wickham Terrace. There were lights operating at the intersection. The First Defendant was travelling in an easterly direction along College Road where it joins Wickham Terrace at the said intersection. He was travelling in the left hand lane of the two lanes which approach the intersection. Exhibits 8 and 9 are aerial plans and photographs of the intersection.
The version of the Plaintiff was that he was executing a right turn on a green arrow having followed two other vehicles which were executing a similar manoeuvre. According to the Plaintiff the vehicles had been waiting for a green arrow to turn. The sequence of lights at the intersection is not in dispute. Exhibit 1 shows that if the Plaintiff was turning on a green arrow then the First Defendant was facing a red light. Prior to facing a green arrow there is a green light for vehicles travelling east and west. There is a red arrow for six seconds whilst both lights are green then the red arrow is off for six seconds whilst both directions face green and then the traffic travelling east face an amber light and then a red light. During that latter phase the traffic travelling east including those turning right face a green light. The Plaintiff’s case is that it was only when the green arrow showed that he executed the turn. He said that a vehicle has stopped at the stop line when the vehicles turned right.
The version given by the First Defendant was that he was travelling in the left hand lane. There is also an exit lane for vehicles leaving College Road to turn left into Gregory Terrace. As he approached the lights travelling about 50 km per hour he observed a vehicle turn across his path. This caused him to say that he “would have reduced his speed” and that he “maintained his speed if not de- accelerate”. He applied his brakes when he saw the Plaintiff’s vehicle. He said in cross examination that he “observed straight down the road”. He said that he did not see the vehicle turning until he was about 10 metres from the stop bar or line. He conceded that as it was two years ago he “had to work it out”. The First Defendant was attempting to remember but one had the distinct feeling that he was reconstructing some of his evidence.
Independent Witness
The defence called Damian Devine. In his evidence, Mr. Devine conceded that he had made several mistakes in his statement (Exhibit 16). He said in his statement that the First Defendant collided with the Plaintiff’s vehicle on the right side of the latter vehicle. That was clearly wrong on the facts and he admitted same. He also had himself travelling in the left lane in his statement whereas at trial he said he was in the right hand lane. Finally, in statement he stated that he saw some vehicles turn right before the Plaintiff’s vehicle but at trial said that he did not see those vehicles. Mr. Devine had not read his statement since providing the corrected version in February 2003. In his statement Mr. Devine stated that the First Defendant’s utility was in the right hand lane when in fact at trial he said it was travelling on his left side some 25-30 metres ahead. The lights he said were green turning orange as the First Defendant’s vehicle approached them. Mr. Devine slowed down as the lights changed to amber. After the accident he turned left across the left hand lane to park his vehicle. In contradiction to the First Defendant’s evidence, Mr.Devine said that there was no vehicle travelling through the intersection after the accident. He was able to park his vehicle on a traffic island as the vehicle in the left lane did not come right up to the stop bar and secondly the lights were red by then and traffic had stopped. The movements of his vehicle was more likely to have occcured in the manner which he stated, I find, if the light sequence was as he described it. There was no need to slow down unless the lights were changing from amber to red. As the First Defendant’s vehicle was some 25-30 metres ahead, no inference can be drawn that the First Defendant went through a red light. Consistent with the lights then turning red, Mr. Devine was able to go across the left lane and park his vehicle on the traffic island.
Findings
a) All three witnesses were honest but mistaken in some aspects of their recollections.
b) The independent witness provides some support for the First Defendant’s case that the lights were green as he approached the intersection. I accept their evidence in this respect.
c) The Plaintiff, given the light sequence, turned with the other vehicles when the traffic turning right faced a green light only. In those circumstances there is a high onus on the turning vehicle to keep a proper lookout.
d) The Plaintiff turned believing that by following the other cars he was entitled to turn but he failed to keep a proper lookout. I find he was mistaken when he said that he faced a green arrow. The green arrow showed only when the light was red for eastbound traffic. At the time that the other cars in front of the Plaintiff moved, I find that the eastbound traffic were facing a green light.
e) The First Defendant saw a car turn across his path but failed to keep a proper look out and to brake in a timely way once he realised that traffic was turning across his path. He was travelling at a speed which would have allowed him to brake had been keeping a proper lookout.
f) The Plaintiff must accept the major part of the liability for this accident.
Counsel for the Defendants referred to the following cases: Scaffidi v. Kuehn MVR 252; Pendrick v Kuhn [1991] ACTSC 94; Thompson v Mumford 11 MVR 441. The latter case is of assistance on principle. At 448 Mackenzie J. stated:
“In my opinion a motorist who has a traffic light in his favour is prima facie entitled to act in conformity with that light. However, if for example he has by observing the conduct of the other motorist, actual notice that that motorist is likely not to act in conformity with his obligations under the law, or if he had with the exercise of reasonable care the opportunity to observe such conduct in time to avoid the risk created by the conduct of the other motorist but disabled himself from doing so due to his own defective lookout he will himself be negligent”.
His honour at 448 also referred to the following passage in Sibley v. Kais (1967) 118 CLR 424 at 427 which is apposite here:
“Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example by performing his duty under a regulation, must remain a question of fact to be judged in all the particular circumstances of the case”.
In my view the present case is factually different to the cases cited. The First Defendant was put on warning about the traffic turning into Gregory Terrace. He had I find a tunnel vision in approaching the intersection being made aware of turning traffic. He failed to act in a reasonable manner by slowing down or perhaps blowing the horn of his car. I apportion liability 75/25 against the Plaintiff.
The Plaintiff suffered the following injuries according to the report of the Royal Brisbane Hospital (Exhibit 4)
a) Occipital headache
b) Left abdominal pain
When the Plaintiff went back to work on the following week, he collapsed at work. He saw Dr.Neuendorf on 4 June and complained of neck pain and pain to the left knee. The diagnosis was whiplash. The knee pain was expected to resolve in a few weeks. He was off work from early June to November 2001. He initially returned on light duties. On 12 December 2002, the Plaintiff collapsed at work. He had been noticing increasing numbness in his left buttock and a general increase of pain on his left side (Exhibit 6).
Dr Gillett an orthopaedic surgeon was of the opinion that the Plaintiff suffered a musculo ligamentous injury involving the lumbar spine with annular tearing at the L5/S1 level. He assessed the residual loss at 5% as a result of the accident. He did not discuss any degenerative changes. Dr. Gillett relied on the history as provided by the Plaintiff who told him that he has no problems with his neck or back or any previous accidents. In cross examination the following history was elicited:
1. 1982 the Plaintiff twisted his lower back and was off work for two weeks.
2. In May 1996 he had a neck spasm when bitten by a wasp.
3. In August 1996 the Plaintiff strained his left shoulder at work.
4. In November 1997 the Plaintiff strained his back when he slipped whilst exiting a bus. He required physiotherapy on six occasions.
He agreed that he had pain to the upper left shoulder and neck and tingling in the left hand.
5. In February 2000 he saw Dr. Ting for pain to the neck and back and chest, leg and aches to the left side of the body..
6. On 14 September, the Plaintiff was in a motor vehicle accident and suffered a bump to the head and lacerations.
7. On 4 May 2001 the Plaintiff slipped in a mail room on tiles and twisted his ankle. He was complaining of lower back and pelvic pain. When he saw Dr. Ting on 8 May 2001 he said that the back was alright by then. He had cramps to his limbs.
There is little doubt that this history was relevant in determining the pre-existing condition of the Plaintiff and moreover whether he was vulnerable to degenerative change. Dr. Gillett was not aware of the history. However, he was of the view that the accident was the likely cause of the symptoms as the Plaintiff was able to do horse riding, play tennis and squash and carry out his duties.
Dr. Toft gave evidence that because of the history, that the Plaintiff suffered an aggravation of pre-existing degenerative changes. He assessed the impairment at 5% but attributed the impairment some 40% as a result of the accident and 60% being the natural progression of his pre-existing condition. The X-Ray revealed evidence of degeneration in the lumbar spine. The MRI did not reveal any neurological compromise.
Based upon the history of the Plaintiff, I find that the evidence of Dr. Toft is more likely to reflect the true position. The Plaintiff was likely to suffer some problems with his back as time went on. The accident accelerated the process. He has been left with a moderate impairment. I found the evidence of Dr. Dickinson to add little to that of Dr. Toft, except to confirm that there was an annular disc tear at S1/L5.
Pain & Suffering & Loss of Amenities
The Plaintiff was an active person prior to this accident. He had played tennis and squash and had an interest in trotting horses. He rode horses as well. In January 1998 he left the Brisbane City Council due to depression. He had taken too much time off. He was a keen worker doing overtime on Saturday and Sundays. He was active around the house. Since the accident other members of his family have assisted in household chores including mowing the lawn and immediately after the accident assistance with personal care. The Plaintiff was adamant that he was symptom free prior to the accident in May 2001. I accept his evidence in this regard. However, one must have regard to the overall history. He was likely to suffer some symptoms as time passed particularly given his vulnerability as evidenced by earlier incidents.
I assess the damages under this head at $25,000.00. Interest at 2% on say half is $700.00
This is agreed at $22,572.70. Interest on that sum less the weekly benefits paid of $15,212.78 at 5.5 % is $567.63.
This is calculated at 8% on $7,359.92 and is agreed at $588.79
The Plaintiff returned to his position as a courier for Queensland Medical Laboratories some five months after the accident. He says that he had previously been able to work overtime on Saturdays and Sundays but because of his injury he has only been able to work on Saturdays. A helpful schedule (Exhibit 19) has been prepared by the defence based upon Exhibit 18 being the Payroll Records from 26.9.99 to 24.9.03. Those records show that the Plaintiff is now working some six hours per week less than previously. The parties have agreed that the net loss per week is $116.55. being a loss of $166.50 gross based upon an hourly rate of $27.75. Counsel for the defence suggests that if one allowed $100.00 per week for 17 years and reduced it by one third for the relevant discounting factors then the loss would be $40,000.00. Counsel for the Plaintiff approached it in a different way and came to a figure of $60,000.00. The latter approach involved a weekly loss of $58.00 net per week over 17 years. This produced a total of some $34,969.70. Then one should allow a global figure of some $25,000.00 on the basis that the Plaintiff may not be able to work to 65 years. Given his pre-existing condition he may not have been able to continue to work to 65 years in any event. Also, there is not guarantee that overtime work will continue for that period of time. I am inclined to allow a discounting figure of 20% on the figures relied upon by the defence to give recognition to the discounting factors referred to. Allowing for the weekly loss of $116.50 over say 17 years then a figure approaching $67,000.00 is the gross figure. If one discounts that figure by say 20% then a sum $53,000.00 is an appropriate allowance.
Future Occupational Superannuation
This is calculated by allowing 9% on the figure of $53,000.00 I allow $4770.00.
This figure is agreed at $6,000.00 including interest.
The figure of $200.00 is accepted by the parties
This figure is agreed at $705.00.
This figure is agreed at $14,600.00.
Interest on $1320 at 5.5089 is agreed at $101.81.
General Damages $25,000.00
Interest 700.00
Past economic loss 22,572.70Interest 567.63
Past occupational Superannuation 588.79
Future Economic Loss 53,000.00
Future occupational Superannuation 4,770.00
Past Griffiths v. Kerkemeyer 6,000.00
Future medication 200.00
Fox v. Wood 705.00
Out of Pockets 14,600.00
Interest 101.81
Total 128,805.93
Less 75% 96,604.45
32,201.48
Orders1.Judgment for the Plaintiff against the Second Defendant for the sum of $32,201.48.
2.Order that the Second Defendant do pay the Plaintiff’s costs of and incidental to the action to be fixed at $2,500.00.
3.It is ordered that the plaintiff do pay the Second Defendant’s costs on a standard basis from 3rd January 2003 to be assessed.
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