Woodward v Brynes
[2008] NSWDC 257
•7 November 2008
CITATION: Woodward v Brynes [2008] NSWDC 257 HEARING DATE(S): 28-29 October 2008 EX TEMPORE JUDGMENT DATE: 7 November 2008 JURISDICTION: Civil JUDGMENT OF: Sidis DCJ DECISION: 1 Verdict and judgment for the plaintiff in the sum of $74,079.
2 The defendant is to pay the plaintiff’s costs of the proceedings.
3 The exhibits will be retained for twenty eight days.
4 The orders are stayed for twenty eight days with liberty to apply at the end of that period in the event that an extension of that period is required.CATCHWORDS: PROFESSIONAL NEGLIGENCE - plaintiff's personal injury claim statute barred - whether hopeless case - assessment of prospects on liability and quantum LEGISLATION CITED: Crown Proceedings Act 1980 (Qld)
Personal Injuries Proceedings Act 2002 (Qld)CASES CITED: Kitchen v Royal Air Forces Association [1958] 1 WLR 563
Phillips v Bisley Court of Appeal unreported 18.2.1997PARTIES: Nigel Woodward - Plaintiff
Kevin Brynes - DefendantFILE NUMBER(S): Newcastle 87/07 COUNSEL: C T Barry SC-D R Benson - Plaintiff
B Hull - DefendantSOLICITORS: Slater & Gordon - Plaintiff
Brynes Lawyers - Defendant
JUDGMENT
1 Nigel Woodward, the plaintiff in this matter, retained Kevin Byrnes, the defendant, as his solicitor to act on his behalf in respect of injuries that he claimed he suffered in a motor vehicle accident that occurred on the Landsborough Highway near McKinlay in Queensland on 28 January 2000.
2 The defendant issued a statement of claim in the District Court of New South Wales on or about 28 January 2003 against the Queensland Department of Main Roads. The solicitor for the Queensland Department of Main Roads advised the defendant that the statement of claim was defective because the defendant was incorrectly named and it had not been served in compliance with the Crown Proceedings Act 1980(Qld).
3 Those solicitors also advised the defendant of their intention to raise the limitation issue if an attempt was made to amend the statement of claim.
4 Correspondence between the solicitors followed dealing with the proposition that the proceedings be discontinued in New South Wales and restarted in Queensland.
5 On 12 August 2004 Queensland counsel advised that the proceedings had also been commenced without giving the appropriate notices as required by the Personal Injuries Proceedings Act 2002 (Qld) and that the proceedings were therefore a nullity. Notwithstanding this advice the proceedings were transferred from the District Court to the Supreme Court of New South Wales and then to the Supreme Court of Queensland on 6 September 2004.
6 On 9 February 2005 Queensland counsel advised that the plaintiff faced insurmountable problems because it was not possible to comply nunc pro tunc with the notice requirements of the Queensland legislation, the proceedings were well out of time and they were therefore not worth pursuing.
7 The defendant’s file contained a note of a telephone conversation on 10 February 2005 with a person named Holyoake who suggested that the defendant try to settle the claim because there was no way around the failure to comply with the Queensland personal injury legislation.
8 The defendant on 23 March 2005 provided written confirmation of the advice given to the plaintiff and his father on 17 March 2005. In that advice he stated that he had consulted a number of barristers in New South Wales and Queensland and that unfortunately they had been united in their opinions that the case, while not hopeless, did not have good prospects of success. Notwithstanding that advice, an election had been made to commence proceedings on the plaintiff’s behalf in the hope that some damages could be obtained for him. The defendant confirmed that he was instructed to attempt to settle the claim.
9 In May 2005 an approach was made to the Queensland Crown Solicitor with a suggestion of settlement. The response arrived in August 2005 in which the Crown Solicitor denied any liability and stated that it would strenuously defend the claim.
10 On 31 August 2005 the defendant withdrew from acting for the plaintiff.
11 The proceedings against the defendant claimed breach of duty of care and breach of contract of retainer. Liability was admitted but the defendant denied that the plaintiff had suffered loss or damage. The essential basis of the defence was that the plaintiff had no viable claim against the State of Queensland.
12 At the hearing the defendant conceded that the plaintiff had incurred expenses thrown away through the flawed proceedings which he estimated at $2,000. It was agreed between the parties that the notional trial date for the proceedings, had they continued, would have been January 2004.
13 The legal principles that apply to a case such as this are well known. In Kitchen v Royal Air Forces Association [1958] 1 Weekly Law Reports 563 at 575, Lord Evershed said:
- The question is, has the plaintiff lost some right of value?.
14 This proposition has been repeated in many subsequent Australian authorities. In Phillips v Bisley (Court of Appeal; unreported, 18 February 1997) Mason P said:
In Johnson and other recent cases the High Court has emphasised that the Court’s duty in cases such as the present is to value the plaintiff’s lost chance. See also Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 at 354 and 362. The lost chance has value even if the Court reviewing the facts with 20:20 hindsight assesses the plaintiff’s prospects at less than 50 percent.
15 He continued:
The critical issue but not clearly addressed in the cases is how to distinguish between the derisory or ‘nuisance value’ offer which Lord Evershed MR in Kitchen would disregard and the situation where a case has sufficient ‘prospects’ for the Court trying the negligence claim to be able to say that the plaintiff would have been likely to have attracted a valuable offer of settlement (even if worth considerably less than a 100 percent of the plaintiff’s actual loss).
16 Thus it will be seen that the question ultimately becomes that of whether the plaintiff had a viable claim and the extent to which the plaintiff was likely to recover by way of a full hearing of his claim or by compromise.
THE VIABILITY OF THE CLAIM
17 The plaintiff’s claim was that he suffered injury when the vehicle he was driving aquaplaned on water crossing the Landsborough Highway. The accident occurred in the dark in the early hours of the morning of 28 January 2000. The plaintiff said that immediately before coming to the water on the highway he noted two vehicles, one a Pantechnicon and the other a sedan parked at the side of the road with people standing near them. After striking water he lost control of the vehicle and it rolled three times before landing on its wheels in a roadside drain. He was assisted by those standing by to move the vehicle from the drain and he then drove it into McKinlay.
18 The plaintiff denied seeing any signs warning of the presence of water on the road. The plaintiff was accompanied by Mr Nigel Peisley on his journey. They were returning to Port Macquarie after making an urgent delivery of spare parts to a gold mine near Katherine. The plaintiff had been driving for a lengthy period of time between Port Macquarie and Katherine and Katherine and McKinlay with minimal rest periods. Mr Peisley’s evidence was consistent with that of the plaintiff.
19 It was probable that the State of Queensland would have called as a witness Police Officer Beck, a police constable stationed at McKinlay, a small settlement of eighteen persons. His evidence was that there was a permanent sign indicating that the road was subject to inundation a short distance prior to the point where the accident occurred. He also stated that it was his practice to put extra signs on the road one before and one after the permanent sign when there was in fact water over the road. Officer Beck said that he had done this prior to 28 January 2000. He said that both signs were in place when he inspected the site of the accident later on in the morning of 28 January 2000 after he had learned of the occurrence of the accident.
20 The defendant argued that the plaintiff’s claim had no prospects because of the evidence Officer Beck concerning the position of the signs and the fact that they were in place the following day. The description of the signs and the photographs of the signs provided in evidence indicated that they were visible both at night and during the day. Constable Beck’s evidence also was that the weather was wet at the time, the accident having occurred during the wet season.
21 The defendant pointed to likely fatigue and inattention on the part of the plaintiff resulting from the extensive period over which he had been driving and the occurrence of the accident in the early hours of the morning. I was also alerted to the fact that others beside the road apparently saw the sign and stopped.
22 Reference was made to the criminal record of the plaintiff’s witness, Mr Peisley and it was suggested that if the plaintiff had indeed been successful in a claim there would have been a considerable reduction of his damages by reason of contributory negligence.
23 As against this I noted that the plaintiff’s version of events was consistent throughout. From the time of the accident until the time at which he gave evidence in this court, he insisted that the accident occurred in circumstances where there were no warning signs of water over the road. This claim was also evidenced in accident report forms, including one of the documents completed by Officer Beck and in the plaintiff’s instructions to the defendant.
24 As to weather conditions there was no evidence that the road was in fact wet at the time of the accident. Both the plaintiff and Mr Peisley denied that the road was wet.
25 There were records from Penola Downs Station, to the south of McKinlay, that indicated that 26 millimetres of rain fell in the 24 hours between 9 am on 27 January and 9 am on 28 January 2000. According to Officer Beck, Penola Downs Station was to the south of McKinlay and water falling in that location did not reach the crossing where the accident occurred. The weather station at Cloncurry, 80 kilometres to the north, recorded that no rain fell in that area on 28 January 2000. Officer Beck’s evidence was that It would have rained on 25, 26 and 27 January but he did not remember if it rained on 28 January.
26 Further, there were many inconsistencies in Officer Beck’s evidence. He was able to produce no notebook recording the events of 28 January 2000. He did not remember if he made any notebook entry. There was no record of any statement from the family he said told him about the accident on the morning of 28 January 2000. He did not record their names and addresses. He said he expected them to wait until he returned from his inspection of the site of the accident but they had left McKinlay by the time he returned.
27 In their absence a court would be asked to accept hearsay evidence on the critical issue of whether the signs were in place at the time of the accident and whether the members of this family were able to see those signs.
28 Officer Beck completed in handwriting on 28 January 2000 a Traffic Accident Report, exhibit 5. It recorded the plaintiff as having stated:
I was driving along and saw a car stopped in the middle of my lane so I slowed down and went around it, then I hit the water and lost control. We rolled three times and stopped on our wheels.
29 There was no reference in exhibit 5 to a Water over road sign.
30 Exhibit 5 was inconsistent with exhibit 6, a typed traffic incident extract completed by Officer Beck on 17 February 2000. In that document the plaintiff’s version is recorded as follows;
I was driving along and I saw this car on the side of the road. I was doing about ninety and I passed the car and then I hit the water. I didn’t see any signs because the car must’ve been parked near it. I couldn’t control the car and it rolled over three or four times.
31 A diagram was completed on exhibit 5 which made no reference to a car in the middle of the plaintiff’s lane. It made no reference to a water over the road sign.
32 Officer Beck demonstrated considerable resistance to acknowledging the inconsistencies between the descriptions in these two documents.
33 The plaintiff was not charged with any traffic offence, notwithstanding on Officer Beck’s version, he disregarded clear warning signs when travelling on the highway. Officer Beck denied that he had not brought charges because there was no sign there.
34 There was inconsistency in the police officer’s evidence concerning the time at which he spoke with the family who allegedly told him of the accident. He told the court that he spoke to them in the morning of 28 January at the McKinlay service station, that he went to the scene to check that the signs were in place and that family had gone when he returned.
35 The defendant recorded that Officer Beck told him that he spoke to persons who witnessed the accident some time later during the wet and that they were off to the side of the road, had tried to wave down the plaintiff and the plaintiff had to veer to avoid them. Officer Beck said that the defendant misunderstood what he had told him. Officer Beck had not recorded in any document that the plaintiff said the sign was not there, although the defendant recorded in exhibit 2, document 14, that the plaintiff had told Officer Beck this. The officer said that he had not remembered saying this to the defendant.
36 Whilst at first blush one might expect that the word of a police officer would be preferred, in this case there were substantial inconsistencies that might well lead a judge to accept the proposition that his evidence was directed at protecting his own position rather than to stating the facts as they actually occurred.
37 Going to the question of whether, assuming the plaintiff was accepted, he was in a position to establish negligence, I noted that Officer Beck conceded that water crossed the Landsborough Highway in a number of places between Cloncurry and McKinlay and that his purpose in putting out extra signs was to alert motorists to the presence of water over the road. It also appeared from his evidence that water crossed the highway on frequent occasions during the wet season when localised storms and rainfall occurred with regularity. He said that water flowing over the highway could come from rainfall occurring in areas to the north east of McKinlay so that the Highway itself was not necessarily wet with rain. There was therefore clear evidence of a foreseeable risk.
38 For the plaintiff it was suggested that a reasonable response to the risk generated by this propensity for water to cross the highway would be for the road authority to construct culverts under the road. In my view this was not a realistic proposition having regard to the extensive road, river and creek systems in outback Queensland and the cost that such a proposition would necessarily involve.
39 There remained, however, the prospect that a court might consider that in fact there were no signs or that Officer Beck’s method of checking if there was water on the road, namely from information supplied by truck drivers or travellers who stopped at the service station at McKinlay was inadequate. It might also find that the signs were inadequate for night time purposes on a road where vehicles travelled at high speed and that flashing lights ought to have been attached to the signs to give them greater visibility. This would be particularly so where drivers could come upon water without first passing through rain or travelling over a wet road surface.
40 The result is that in my view by the time the proceedings were ready for hearing both parties would have appreciated that their positions were not clear cut.
41 Added to these findings was the evidence that the defendant at no stage advised the plaintiff that his case was entirely hopeless or that it was of nuisance value only.
42 The advices received from counsel concerning the prospects of success were based on the failure to comply with the notice requirements of the Queensland legislation and on the assumption that the evidence of Officer Beck would be preferred to that of the plaintiff. It was apparent that, in giving this latter part of the advice, counsel were unaware of the major inconsistencies in Constable Beck’s evidence. I therefore find that the plaintiff did in fact lose a right of value through the admitted neglect of the defendant. I find that he lost the right to pursue an opportunity to secure compensation by court assessment or by settlement.
ASSESSMENT
43 Assessment of the value of the claim involved using my best efforts to determine the likely verdict if the plaintiff was successful and the likely deduction for contributory negligence. The next step was to determine the discount to be applied to take account of the risk that the claim would not succeed.
44 In assessing the claim I have noted the reports of Dr G J Cross of the Queensland Bar, exhibit A, in which he reviewed the medical evidence that the plaintiff would have relied upon at a trial in January 2004. No medical evidence to challenge this material was provided by the defendant.
45 The plaintiff’s claim was of pain in the thoracic spine. Dr Hopcroft diagnosed as the source of this pain a wedge compression fracture of the fifth thoracic vertebra. The symptoms and consequences to the plaintiff were set out in Dr Cross’s report. They included ongoing serious back pain affecting his mobility, his capacity to sleep and to engage in sexual activity, social avoidance and depression.
46 They also prevented him from continuing his work as a truck driver in which at the time of the accident he was employed by his father’s company. His employment opportunities were limited by restrictions on heavy lifting, excessive bending and twisting. The medical evidence indicated that his condition was likely to degenerate.
47 Dr Cross set out reasons for assessment of the compensation likely to be awarded to the plaintiff if he were a 100 percent successful and arrived at a range between $275,639 and $327,689. He pointed out that from those figures it was necessary to deduct refunds payable to parties such as the Health Insurance Commission, the workers compensation insurer, Social Security and a component for solicitor/client costs.
48 The plaintiff’s schedule of damages, exhibit E, took a mid point of the assessment made by Dr Cross at $300,000. The schedule applied deductions in respect of Worker’s Compensation and added interest to arrive at a figure of $185,198.07.
49 The defendant did not challenge Dr Cross’s methodology but challenged his assessment in respect of income earning capacity, voluntary domestic care and medical expenses.
50 I deal with the assessment as follows.
General Damages
51 Dr Cross assessed general damages at between $40,000 and $55,000. I regarded those figures as most reasonable.
Past Income Loss
52 The defendant pointed to the plaintiff’s income tax return for the year 2000 that indicated that his taxable income in that year was $11,462. The tax returns for subsequent years suggested that the plaintiff’s income had increased since the date of the accident rather than decreased.
53 In 2001 his income was $16,884, 2002 - $14,675, 2003 - $26,044, and 2004 - $27,918.
54 The plaintiff explained that while he was employed as a truck driver he received a daily allowance, claimed in the 2000 tax return as a travel allowance and deducted from gross income. If this were added back his net income for that year would be $28,109 or $540 net, very close to the $580 figure adopted by Dr Cross.
55 Port Macquarie Freight Lines provided a statement, exhibit D, of the gross income that the plaintiff would have received in the years between 2001 and 2004. This letter came from the plaintiff’s father as the managing director of the company that employed him. It was not challenged by evidence from the defendant.
56 The plaintiff said he enjoyed his work as a truck driver and his intention at the time of the accident was to continue with that work.
57 Having regard to the evidence I find that the plaintiff’s income as a combination of his wage and allowances would have been as stated by Port Macquarie Freight Lines Pty Limited in exhibit D and I therefore have no reason to reject the assessment of past economic loss made by Dr Cross.
Future Income Loss
58 The defendant’s challenge to the notional assessment of future income loss was made on the same basis and it was similarly rejected.
Domestic Care
59 There was no evidence at this hearing of care requirements and it was therefore not taken into account.
Special Damages
60 Past medical expenses were based upon a continuing need for analgesia. There was also evidence that the plaintiff required regular physiotherapy. In those circumstances I regarded the assessment of $5,000 to be reasonable. Future medical expenses of $5,000 to $10,000 I also accepted as reasonable.
61 In the circumstances I accepted as appropriate the plaintiff’s suggestion that the value of his lost right of action be based upon a figure of $300,000 being the midway point between the two figures arrived at by Dr Cross. This adequately takes into account the discarding of the amount claimed for domestic care and the other minor expenses involved.
62 The plaintiff’s schedule of damages provided for the deduction from that figure of worker’s compensation payments made to January 2004 and a notional figure of $70,000 for future worker’s compensation benefits. This equated to approximately one half of the amount built into the assessment for future income loss and was considered appropriate.
63 I find that the full value of the lost right of action was $185,198.
64 In determining whether there was contributory negligence I have noted the length of time that the plaintiff had been driving and his likely fatigue together with the speed at which he was driving at the time, having regard to the position of other vehicles at the side of the road. I have considered that had he had slowed down and been fully alert his damage might have been avoided or reduced. In those circumstances I consider that at a notional trial his damages would have been reduced by 20 percent or $37,040.
65 I assess therefore the likely award, had the matter been dealt with at trial and fully successful, at $148,158.
66 Dealing with the discount to be applied based upon prospects, I have already noted that the plaintiff’s position was far from clear cut. In my view the most likely outcome, had the claim been pursued, would have been a compromise of the value of the claim by 50 percent. At that point I consider that given the inconsistencies in Officer Beck’s written records of the accident, the defendant to the proceedings would find a compromise more attractive than the risk of failure in the defence of the claim. I have therefore assessed the plaintiff’s lost right of action at $74,079.
ORDERS
67 The orders which I make are as follows.
1 Verdict and judgment for the plaintiff in the sum of $74,079.
2 The defendant is to pay the plaintiff’s costs of the proceedings.
3 The exhibits will be retained for twenty eight days.
4 The orders are stayed for twenty eight days with liberty to apply at the end of that period in the event that an extension of that period is required.
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