Yoo v Poulos
[2012] NSWDC 21
•15 March 2012
District Court
New South Wales
Medium Neutral Citation: Yoo v Poulos [2012] NSWDC 21 Hearing dates: 13/03/2012 and 14/03/2012 Decision date: 15 March 2012 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Judgment for the defendant
Catchwords: Personal injury, pedestrian accident. Legislation Cited: Motor Accident Compensation Act 1999 Cases Cited: Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Knight v Maclean [2002] NSWCA 314
Mason v Demasi [2009] NSWCA 227Category: Principal judgment Parties: Wie Kyung Yoo (Plaintiff)
Ellis John Poulos (Defendant)Representation: J Reimer (Plaintiff)
J Ryan (Defendant)
Brydens Law Office (Plaintiff)
QBE CTP Legal Unit (Defendant)
File Number(s): 2011/00198143 Publication restriction: No
Judgment
The plaintiff was injured in a motor vehicle accident on 30 March 2009. She was a pedestrian attempting to cross Barker Street in Kensington. She had parked on this street and was visiting her daughter who was then a student at the University of NSW, which is on the other side of Barker Street.
The plaintiff seeks damages arising from the injuries she says were caused by the negligence of the defendant. The defendant denies negligence and, in the alternative, alleges there was contributory negligence.
The action is governed by the Motor Accident Compensation Act 1999 (the "MACA"). The plaintiff does not qualify for non-economic loss under Section 131 of this Act. The heads of damages for which she seeks compensation are past and future economic loss, past and future medical expenses and past and future domestic care.
The plaintiff's background is set out in the chronology (Exhibit A). As at the date of the accident she was a participant in a family business involving the manufacture, wholesaling and sale of shoes. The plaintiff was a director of the company that ran the business.
In 2009 there were outlets at Bankstown, Campsie and in The Haymarket. There was a factory and warehouse in Granville. The plaintiff, in 2009, seems to have been mainly concerned with the store in Bankstown and with the company's paperwork. The Bankstown store closed in 2011.
The accident
The overall scene can be discerned from Exhibits B, C and 1. Barker Street runs in an east-west direction and slopes markedly downward travelling in a westerly direction. There is apparently now a pedestrian crossing opposite the entrance to the University but it is accepted that this did not exist in March 2009.
The accident occurred just before noon on a fine but windy day.
The plaintiff said she parked her four-wheel drive Toyota Prado in approximately the position marked with an "X" in Exhibit 1. She then walked in a westerly direction to the western side of Willis Lane. This was to be the starting point for her journey across Barker Street. She said that there was a vehicle parked to her left but not to her right. Willis Lane was to her right.
She moved forward apparently to about the drivers' side line of the parked vehicles. She then leaned forward so that her back was at an angle of about 40 degrees from the vertical. She was struck by the defendant's vehicle as it travelled in a westerly direction along Barker Street. She had not seen this vehicle before the collision, although she had allowed traffic to pass on Barker Street before the accident occurred.
The plaintiff said she was struck by the vehicle's wing mirror. Importantly she submitted that she would not have been struck if she had not leaned forward. On this basis the passenger side of the defendant's car must have been very close to the parked vehicles.
Following the collision, in which the impact was just below her left breast but close to the middle of her chest, she found herself in the air and then fell to the ground. She landed on her right side. She noticed the vehicle which had hit her continuing down the road but she later said it turned around and parked on the opposite side of the road. There was no conversation with the driver.
The defendant gave oral evidence. He is a civil engineer. In March 2009 he was studying a degree in engineering at the University of NSW. He was then a 'P-plater'. He regularly drove his Toyota Celica to and from university. He had had the car for about two years and it was in good order.
On the day of the accident the defendant parked his vehicle in Willis Street to the north of Barker Street. After his lectures he met his friend, Martin Breuer. He was giving him a lift to a nearby train station. He drove along Willis Street and, after waiting for passing traffic, he turned right into Barker Street. As the incline was steep his foot was "covering" the brake and he was travelling at about 40 to 50kph. Vehicles were parked on both sides of Barker Street. As the defendant proceeded toward Willis Lane he noticed a pedestrian standing on the far side of a parked four-wheel drive vehicle. He was not sure if there was another vehicle in front of the pedestrian.
The pedestrian, who was obviously the plaintiff, was about 10 to 15 metres ahead of the defendant when he first saw her. The plaintiff was then looking to her left.
As the defendant's vehicle was passing the plaintiff he noticed "out of the corner of his eye" that she stepped out into the side of his vehicle. At this stage she was about five metres east of Willis Lane.
Under cross-examination the defendant said there was general traffic on Barker Street going both ways but he could not say that at the moment he noticed the pedestrian there was any oncoming traffic that would have prevented him, as a safety precaution, from travelling to the other side of the road. This frankness was a mark of his apparent honesty.
The defendant said that the left hand side of his vehicle was about half a metre from the line of parked cars and the right hand side was a shorter distance to the centre of the road. The defendant was adamant that the accident occurred between Willis Street and Willis Lane, and not to the west of Willis Lane.
Mr Breuer gave evidence. He was also an engineering student at the time and he still is. He said that after the defendant's vehicle turned right into Barker Street he noticed there were cars parked on both sides. He saw the plaintiff walking up the footpath. He next saw her on the road between two parked cars. The first of these vehicles (the most easterly) was "a big black four wheel drive" . The defendant was then travelling at 40 to 45kph.
When Mr Breuer saw the plaintiff standing between the parked vehicles she was about two metres ahead. He then saw her step out toward the car and collide with it above the front left tyre. She came back and then struck the side mirror and he thought her head had hit the windscreen. He did not recall her leaning forward.
After the accident
An ambulance arrived and the plaintiff, accompanied by her daughter, was taken to the Prince of Wales Hospital. The plaintiff was in a good deal of pain, especially down her right side. She had been breathless at the scene of the accident. X-rays were taken. The plaintiff was discharged after about five hours.
On the journey home the plaintiff became nauseous and was sweating. The driver diverted to the Royal Prince Alfred Hospital where x-rays were again taken. The plaintiff was discharged at about midnight.
The plaintiff stayed in bed for about a month during which time her family catered for her needs. She then returned to work but passed the baton in respect of housework. With the exception of minor assistance, the plaintiff had done all of the housework and cooking before the accident. After the accident the plaintiff returned to some chores but the majority of work was and is still being done by her husband, daughter and son.
One of the occasions when the plaintiff said she had received assistance prior to the accident was when she had a sore back, which she said required medical attention from time to time. No back injury, or aggravation of a previous back injury, was originally claimed in the Statement of Particulars. When the plaintiff's son gave evidence he was adamant that his mother had not had a bad back before the accident and seemed to imply that her incapacity to carry out household tasks was as a result of her bad back. He did also mention that she appeared to have significantly diminished energy levels.
The plaintiff said that her main problems at present were pain in her right arm at the elbow and thumb locations, pain in her right leg and occasional pain in the chest. The plaintiff thought her condition was deteriorating.
The plaintiff said that following the accident she worked in the Bankstown store and her husband worked in the warehouse and at Campsie and Haymarket. The plaintiff's son said that his uncle ran the Campsie store. The plaintiff did not mention this gentleman.
The Bankstown store closed in March 2011. The plaintiff now works at the Haymarket store on Thursday, Friday, Saturday and Sunday of each week. On Monday, Tuesday and Wednesday she is at home or goes out to meet friends. She does a little housework. Her son said she also did company paperwork.
The plaintiff said her daughter now does most of the cooking. It took her about an hour a day. She said her husband and son now did the cleaning and this required about 30 minutes every day. Her daughter did the shopping. Her son and daughter did the washing, which occurred three times a week and took about half an hour.
According to the plaintiff's son, John Yoo, he and his father went "halvies" in cleaning the bathroom and toilet. He did the vacuuming two or three times a week which took about an hour on each occasion. The introduction of two dogs, in particular his King Charles Spaniel required a good deal of vacuuming because it shed a lot of hair. This dog had arrived since the accident. The plaintiff's son also said much of the cleaning that was done before the accident arose from his mother cleaning up after him. He was messy.
The plaintiff's son is now almost 22 years of age. He is a student at Macquarie University. His evidence was sometimes vague and sometimes contradicted that of his mother. He described an unusual family dynamic. He spoke to his father only of business and very rarely communicated with his sister. He was close to his mother and said he was doing housework to assist her. His description of his mother's work practices was different to his mother's evidence.
Although always polite in the witness box Mr John Yoo displayed a degree of indifference to detail in his evidence and I felt had a somewhat vague memory of events before and after the accident. I do, however, accept that since the accident he has participated significantly more in household chores. He did agree that there was now a greater obligation on him "to do his part" although at one stage he seemed to suggest that his father's requirement for him to pay rent was inconsistent with him contributing to domestic activity.
Liability
The ambulance report includes this statement. This 53 year old woman "stepped onto the road and was hit by a vehicle from her right on her right side of her body, collided with car's left mirror - knocked her to the ground" . It is not clear what the source of this history is and I treat it with some caution, in particular having regard to the observations of Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2).
The plaintiff accepts that she must have been beyond the line of the parked cars when she was hit, although only by reason of her bending forward. Her allegation of negligence was formulated as a "package" in which the defendant was driving too fast and too close to the parked vehicles and he failed to sound his horn and to steer a wide berth after he first saw the plaintiff.
I thought the defendant and Mr Breuer were very impressive witnesses. They gave their evidence clearly and I had a distinct impression they were doing their best to recollect matters accurately. I have no doubt, and I find, that the plaintiff stepped or walked out into the side of the defendant's vehicle. I reject the possibility that the collision occurred because the plaintiff leaned forward and would not have been struck but for doing so.
In rejecting this possibility I do not mean to suggest that I did not believe the plaintiff as a matter of credit but rather that I do not find her recollection reliable. Not only is it contrary to the evidence of the defendant and Mr Breuer, both of whom I accept, but it also seems to defy a logical assessment. The extent to which the plaintiff said she leaned forward would not allow for her to be struck by the mirror of the car. This is not a technical or expert opinion, rather one of impression. I do not, for example, know the height of the wing mirror on the car. I stress, however, that I have principally rejected the plaintiff's evidence because I accept that of the defendant and Mr Breuer that she walked into the side of the vehicle.
The next question is whether on this basis there was nevertheless negligence on the part of the defendant. I do not think there was. In my view there was no opportunity to effectively sound the horn and the defendant was driving at a safe distance from the parked cars. It is to be recalled that he was closer to the centre line. I do not see his speed as excessive in the circumstances. There was no apparent necessity for him to be driving at any lower speed.
The plaintiff's primary submission was that the defendant, having seen the plaintiff, should have taken preventative action by driving to the other side of the road. This was to guard against the possibility that she might attempt to cross Barker Street. The plaintiff submitted that because the defendant could not say that there was no oncoming traffic then he could not, in turn, say that he was not able to move to the wrong side of the road. The onus is on the plaintiff to prove her case. The general evidence was that there was a traffic flow in both directions. I do not accept that the plaintiff has established that the defendant had the opportunity to safely move to the other side of the road.
In addition, I am of the view that it was not reasonable to expect the defendant to have done so. Had he seen the plaintiff walking across Barker Street the position may have been different. However, when he saw her she was stationary and I think it was reasonable for him to assume that she was checking to see if it was safe to cross the road.
I think the facts of this case fall squarely within the parameters of the judgment of Heydon JA (as he then was) in Knight v Maclean [2002] NSWCA 314 at paragraph 68. His Honour said:
"[68] It is not the law that a driver complying with the minimum requirements of the law of negligence must drive in such a way as to anticipate everything that a pedestrian might do at all stages of every journey, or to be in a position to reduce speed to levels which will avoid any risk of a collision at all stages of any journey."
Accordingly there must be judgment for the defendant.
Had I found in the plaintiff's favour on liability it would have been necessary to assess contributory negligence. I find this exercise difficult because I have rejected the plaintiff's version of the accident. At best I think I can say that had I accepted the plaintiff's version, with her standing safely but leaning forward into danger, the contributory negligence would have been very small because the defendant would necessarily have to have been travelling extremely close to the parked vehicles. This would have been very dangerous considering that he had seen the plaintiff before the collision.
On the defendant's version, if there had been a finding of negligence, so that the plaintiff walked out from in front of the four-wheel drive and into the side of the defendant's vehicle the finding of contributory negligence would have been much larger and in the order of about 45%.
It is not necessary for me to comment on the medical reports or to assess damages. I will however do so against the possibility that my decision on liability is wrong.
The medical reports
The plaintiff's general practitioner is Dr Morsingh. He has been seeing the plaintiff since April 2006. He first saw her after the accident on 1 April 2009. In his report to the insurer (part of Exhibit D) Dr Morsingh refers to the plaintiff's previous Bells Palsy which he says has completely resolved. More importantly, he stated that she had a "known L5/S1 disc prolapse" . He says that this condition was aggravated in the motor vehicle accident.
Dr Morsingh, who wrote "in good faith and without prejudice" concluded in this way:
"2.5 Opinion
2.5.1 Prognosis. The contusions to the sternum, chest and breast have resolved. The abrasions on the forearms and legs have resolved. The exacerbation to th e lumbar spondylosis will settle down. The right elbow epicondylitis has not abated completely and may require corticosteroid injections from an orthopaedic specialist."
Dr Morsingh sent a second report to the plaintiff's solicitor on 21 May 2011 (also in Exhibit D). On this occasion he said:
"Mrs Yoo is a fulltime house wife and has been able to carry on with her home duties, but she does suffer pain from doing them."
This statement is contrary to the plaintiff's evidence in two ways: firstly on her evidence she is not a fulltime housewife and secondly she has not been able to carry on with her home duties, albeit in pain.
The doctor's prognosis in his second report is of "a lumbar disc prolapse with nerve irritation" . He does not mention any other injury as being of current consequence. Once again I note the absence from the plaintiff's evidence of her back being aggravated by the accident. Her claim form (Exhibit 2) does not list her back as an injury nor does the attached medical certificate from Dr Morsingh.
The plaintiff's back features in the report of Mr Glancy, a psychologist. In his report of 8 June 2010 (Exhibit D) he says: "Mrs Yoo reported recent, at the time of consultation, onset of back pain. She'd spoken to her doctor of back pain. The doctor reportedly suggested that it could relate to the accident" .
Mr Glancy also refers to a number of manifestations of anxiety that were simply not mentioned by the plaintiff in her oral evidence.
Mr Glancy's diagnosis was of post traumatic stress disorder and depression. His many references to the plaintiff's loss of libido and sexual avoidance did not form any part of the plaintiff's evidence. This subject also features in Mr Glancy's second report.
Mr Glancy talks of the plaintiff's anxiety when crossing roads and her judgment concerning approaching traffic. This was also missing from her evidence. Mr Glancy maintained his diagnosis of post traumatic stress disorder and depression. He thought she required eight consultations with a psychologist.
Dr Conrad is a surgeon who provided the plaintiff's solicitor with two reports, which are in Exhibit D. Dr Conrad also has a history that includes back pain and stiffness. He describes other injuries to the plaintiff's right leg and right arm.
In his second report Dr Conrad records a history consistent with the plaintiff's evidence that her condition was deteriorating. He describes being told about ongoing stiffness in the plaintiff's right elbow as well as ongoing pain in her back which radiates to her right leg. His opinion was as follows:
" OPINION : This lady was involved in a motor vehicle accident on 30 March 2009. As previously reported, she injured the front of her chest, but did not have any sternal or rib fractures as far as I can see. She injured her right elbow and she has some restricted flexion and pain and stiffness. She injured her back and she has ongoing back pain and some non-verifiable right-sided radiculopathy. She had some soft tissue injuries to her right leg, but she has full movements in her right hip, right knee and right ankle. She continues to need conservative treatment and she may need physiotherapy. She has suffered from some post-traumatic stress and she may need psychological counselling."
The plaintiff's medical material is, to say the least, unsatisfactory. Despite numerous references in the reports to a problem with her back this was not translated into a particularised claim. In fairness to the plaintiff I should say that in her evidence in chief she did not allege any injury, or exacerbation of any injury, to her back.
The difficulty is that in assessing her capacity to work and to do domestic chores it is necessary for me to take into account the contents of the medical reports and their persistent reference to the aggravation, if not initiation, of a back condition. In addition, there is the evidence of her son to the effect that her entire back condition has only existed since the motor vehicle accident.
The defendant's medical reports are in Exhibit 4. Dr Smith is a psychiatrist. He had the benefit of an interpreter and took a history that "at the time of my examination she was working fulltime. She stated that she undertakes a variety of tasks in the business and was not restricted in any significant manner" . This is contrary to the plaintiff's evidence but I treat it with caution ( Mason v Demasi [2009] NSWCA 227).
Dr Smith concluded that the plaintiff "has experienced a modicum of psychological systematologies equated to the development of an adjustment disorder with depressed and anxious mood - chronic in duration and mild in intensity" . Dr Smith thought the plaintiff should have eight to ten sessions of cognitive behavioural therapy with a consultant psychologist.
Dr Lim is an occupational physician. Interestingly his history of how the accident occurred involves the plaintiff walking between two parked cars and then, as she stepped onto a clear roadway, a passing car struck her. I treat this history with reservation for reasons I have already given.
I think the most significant aspect of Dr Lim's report is that he does not include the plaintiff's back condition as one of the injuries caused by the accident. I also note that he rates the severity of the injuries as minor and not requiring any assistance.
The general practitioner's clinical notes are significant in indicating previous complaints of back pain. The plaintiff saw her general practitioner in April 2006. She was referred for x-rays which revealed a "2mm anterior slip of L4 vertebral body relative to L5 with narrowing of the left side of the L3/4 disc" .
There were no complaints of back pain following the accident until 22 February 2010. Scans taken on 24 February 2010 concluded as follows: "No bone injury. Mild lumbar spondylosis. Otherwise negative".
Damages
The plaintiff's submissions on damages put detail to the side and relied on a "robust" approach stemming from a before and after assessment. Thus it was submitted that the plaintiff was obviously a hard working person, both at home and at work, before the accident; this was no longer the case and therefore substantial damages should flow. The total claim exceeded $200,000. Finer points, such as the necessity to meet the requirements of Section 126 of the MACA or the thresholds relating to domestic care (Section 128) took second place.
This approach was consistent with the failure to include the back injury in the Statement of Particulars. At the end of the plaintiff's case an application was made to amend the Particulars. It was not opposed on the provision that I would give leave for the plaintiff to be further cross-examined. I allowed this to happen and the cross-examination confirmed my earlier impression that any back condition was not related to the accident. Once again in fairness to the plaintiff, such a conclusion was consistent with her evidence in chief.
The plaintiff's claim for past economic loss was for $500 per week and then the cost of replacement labour. The plaintiff's tax returns (Exhibit E) do not show a pre-accident net weekly wage of $500 per week. There is a remarkable consistency over the years of her earnings and I suspect the tax returns are not indicative of her actual income. This is not a suggestion of dishonesty but rather recognition of the manner in which family businesses are often run. At best earnings of about $350 per week could be established and I would have allowed four weeks at this rate.
The plaintiff's son gave evidence of working in the business after his mother's injury but there is no evidence of any replacement wage being incurred either by the plaintiff or by the company. Mr John Yoo did not even say if he was paid.
The plaintiff's injuries must not only have resulted in an incapacity but also have been productive of economic loss. I cannot find any such loss on the evidence. Other than for the first month I am not satisfied that the plaintiff has established any past economic loss.
In relation to the future the claim is based on a diminished earning capacity.
I do accept that the plaintiff was a hard working person who might have been expected to carry on doing so for as long as she was able. She is, however, still working and her income does not seem to have suffered. If she does have an incapacity it is difficult to know from what it arises. If it is from the back it is not compensable. It certainly does not seem justified on the basis of any chest, elbow or leg injury. There could well be a psychological element involved but I do not see this as producing any incapacity.
I am not satisfied that the plaintiff has met the threshold imposed by Section 126 and would not award any future economic loss.
Turning to past domestic care. On the plaintiff's evidence her family provided about 12 hours of assistance per week. It is about eight hours per week on her son's evidence. However, as I have already noted, a good deal of the son's activities are concerned with cleaning up the shedded hair of his King Charles Spaniel.
There is the additional problem that based on the plaintiff's son's evidence, it is probably the plaintiff's back that is causing her incapacity to do her domestic chores.
The plaintiff submitted that I should view the matter with commonsense stemming from her degree of activity before the accident compared to the position since. Commonsense is a useful tool in a judge's armoury but it cannot be used, as I have already stated, to the exclusion of specific requirements in the applicable legislation. I am not satisfied that the plaintiff has established a need for domestic care going beyond perhaps a month or two from the accident. I am also not satisfied that the care provided by the plaintiff's son is responsive to a need as opposed simply to him perhaps finally recognising his obligations to the household and tidying up after his dog.
I am not satisfied that the plaintiff received domestic assistance of more than six hours per week for more than six months and I would not allow any amount under this head of damages.
For similar reasons I would not allow any future domestic care. The claim for paid care was abandoned.
I would also note in relation to domestic care that the plaintiff's husband and sister did not give evidence. Had the evidence of Mr John Yoo not been so obviously unreliable their absence may have been explicable. There was much to repair, however, following Mr Yoo Jnr's evidence. I think I can comfortably draw an inference that the evidence of the plaintiff's husband and daughter would not have assisted her case.
Out of pocket expenses were agreed at $2,084.45. A claim of $3,000 to $5,000 was made for future medical expenses. The defendant conceded that provision was reasonable for counselling and some visits to a general practitioner. I would have allowed $2,500.
Had there been a finding in favour of the plaintiff, I would have assessed damages as follows: Past economic loss $1,400, out of pocket expenses $2,084.45 and future medical treatment of $2,500. This is a total of $5,984.45, which would have been subject to any finding of contributory negligence.
Final orders
(a) Judgment for the defendant.
(b) The plaintiff is to pay the defendant's costs of the proceedings.
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Decision last updated: 16 March 2012
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