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  • Unreported Judgment

Spencer v Downie

 

[2019] QSC 98

SUPREME COURT OF QUEENSLAND

CITATION:

Spencer v Downie and Anor [2019] QSC 98

PARTIES:

CHRISTOPHER JOHN SPENCER

(plaintiff)

v

NOEL STANLEY DOWNIE

(first defendant)

AND

AAI LIMITED ABN 48 005 297 807

(second defendant)

FILE NO/S:

No 12677 of 2016

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

12 April 2019

DELIVERED AT:

Rockhampton

HEARING DATE:

21 and 22 March 2019

JUDGE:

Crow J

ORDER:

  1. Judgment for the Plaintiff against the Second Defendant for $639,127.99.
  2. The Second Defendant pay the Plaintiff’s costs of and incidental to the proceeding assessed on the indemnity basis.

CATCHWORDS:

TORTS – NEGLIGENCE – GENERALLY – where plaintiff claims damages for injuries suffered while riding his motorcycle – where plaintiff  alleges the defendant failed to keep a prior lookout and use indicators prior to turning – where plaintiff attempted to pass vehicle and lost control of motorcycle – where plaintiff has a pre-existing injuries

Civil Liability Act 2003 (Qld)

Civil Liability Regulation 2003 (Qld)

Allwood v Wilson & Anor [2011] QSC 180

Berwick v Clark & Anor [2018] QSC 116

Hopkins v WorkCover [2004] QCA 155

Davie v Magistrates of Edinburgh [1953] SC 34

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588

Watts v Rake (1960) 108 CLR 158

Purkess v Crittenden (1965) 114 CLR 164

Heywood v Commercial Electrical Pty Ltd [2013] QCA 270

Fox v Wood (1981) 148 CLR 438

COUNSEL:

M Grant-Taylor QC and P Feely for the plaintiff

WDP Campbell for the defendant

SOLICITORS:

Jensen McConaghy for the Defendants

McInnes Wilson for the plaintiff

Liability

  1. [1]
    On 21 February 2013 at approximately 7.45am an accident occurred adjacent to premises of N & WA Oppermann Transport at 24087 Burnett Highway EidsFvold. The vehicles involved were a Yamaha motorcycle being ridden by Mr Spencer and a Kenworth T401 “superdog” tanker trailer.[1]In the location of the accident the Burnett Highway runs from Monto in the north to Eidsvold then Mundubbera in the south. At approximately half way along the Burnett Highway from Monto to Mundubbera is the township of Eidsvold. The Oppermann Transport property is a few kilometres to the north of Eidsvold.
  2. [2]
    Mr Spencer had for approximately 12 months prior to the accident lived at 1 Fairy Street Abercorn. Abercorn is a country town northwest of Eidsvold. It was suggested to Mr Spencer that Abercorn was a small township of only 15 residents. Mr Spencer’s reply was that he thought 15 people was an exaggeration.[2]
  3. [3]
    At the time of the accident Mr Spencer was employed by Mr and Mrs Seth as an electrical tradesman within their business of Mundubbera Electrical. On the morning of 21 February 2013, Mr Spencer was undertaking his usual journey to work. Mr Spencer left his residence at 1 Fairy Street Abercorn and rode his Yamaha motorcycle in a southerly direction upon the Abercorn Road until that road joined the Burnett Highway. Mr Spencer then rode in a southerly direction along the Burnett Highway towards Eidsvold and Mundubbera. Mr Spencer estimates the distance between Abercorn and Mundubbera to be approximately 60 kilometres.[3]
  4. [4]
    Mr Spencer’s pleaded version of the accident is contained in paragraph 3 of the Statement of Claim and is as follows:

“3. At or about 7.45am on 21 February 2013 (“date of accident”):

  1. (a)
    The Kenworth T401 was travelling in a southerly direction on the Burnett Highway near Eidsvold;
  1. (b)
    The Yamaha motorcycle was travelling in a southerly direction along the Burnett Highway behind the Kenworth T401;
  1. (c)
    As he came up behind the Kenworth T401 the Plaintiff moved towards the centre line and checked the path ahead to determine whether it was safe to overtake the Kenworth T401;
  1. (d)
    There were no vehicles travelling in the Northbound Lane;
  1. (e)
    As it appeared to be safe to overtake, the Plaintiff activated the right indicator on the Yamaha motorcycle and commenced to overtake the Kenworth T401 and trailer on the right hand side;
  1. (f)
    As the Plaintiff commenced to overtake the Kenworth T401 and trailer, the First Defendant caused the Kenworth to start a right hand turn toward a private driveway on the western side of the Burnett Highway;
  1. (g)
    After observing the Kenworth T401 and trailer starting to turn to the right, the Plaintiff braked heavily to avoid a collision with the Kenworth T401 and lost control of the Yamaha motorcycle;
  1. (h)
    The Yamaha motorcycle skidded off the right hand side of the road and landed in a drain on the side of the road and the Plaintiff suffered personal injuries.”
  1. [5]
    In its Amended Defence the defendant admits paragraphs (a), (b), (d) and (h) in paragraph 3 of the Statement of Claim, does not admit paragraphs 3(c), (e) and (g). In its denial of paragraph 3(f) of the Statement of Claim paragraph 3(f) of the Amended Defence pleads:
  1. “(f)
    Deny that the First Defendant commenced a right turn as the Plaintiff commenced the subject overtaking manoeuvre on the grounds that the First Defendant had not already commenced the right turn (but had indicated including indicating an intention to do so) prior to the Plaintiff attempting the overtaking manoeuvre. The Defendants admit that the First Defendant’s intention was to execute executing a right-hand turn into a private driveway on the Burnett Highway."
  1. [6]
    The plaintiff’s case in negligence is set out in paragraph 4 of the Statement of Claim as follows:

“4. The accident was caused by the negligence of the First Defendant in:

  1. (a)
    Failing to activate the right indicators on the Kenworth T401 and trailer in order to indicate his intention to other road users, especially any following vehicles;
  1. (b)
    Failing to keep any or any proper lookout for vehicles behind the Kenworth T401 and trailer by use of rear mirrors or otherwise generally and, in particular, before commencing to turn right to ensure it was safe to do so, especially in a 100 kilometre per hour zone on a highway;
  1. (c)
    Attempting to turn into private property when it was not safe to do so;
  1. (d)
    Failing to exercise proper care and control in the driving and management of the Kenworth T401 and trailer.”
  1. [7]
    The defendant’s case in denial of negligence is set out in paragraph 4 of the Amended Defence as follows:

“(a) The First Defendant activated the right indicators of the Kenworth T401 prior to commencing the right-hand turn;

  1. (b)
    The First Defendant kept a proper lookout for vehicles behind the Kenworth T401 prior to commencing the right-hand turn;
  1. (c)
    The First Defendant turned into private property only when satisfied that it was safe to do so and after the Plaintiff’s Yamaha motorcycle had skidded off the right hand side of the road and landed in the drain on the side of the road;
  1. (d)
    The First Defendant exercised proper care and control in the driving and management of the Kenworth T401 and compiled with the relevant road rules at all times;
  1. (e)
    The accident was solely caused solely by negligence of the Plaintiff particulars of which are as follows:
  1. (i)
    Attempting an overtaking manoeuvre in circumstances where it was unsafe to do so;
  1. (ii)
    Travelling at a speed which was excessive in the circumstances;
  1. (iii)
    Failing to observe the right indicators displayed by the Kenworth T401;
  1. (iv)
    Failing to maintain control or any proper control of the Yamaha motorcycle.”

Failure to keep a proper look out

  1. [8]
    The evidence in this case suggests that there was a straight of at least 500 metres to the north of the site of the accident.[4]Even if the motorcycle was travelling at 140 kilometres per hour, or approximately 39 metres per second, the motorcycle ought to have been in view of Mr Downie for a very minimum of 10 seconds (500 metres ÷ 39 metres per second = 12.82 seconds). If Mr Spencer was travelling at about 100 kph, as he deposes, the motorcycle would have been able to be seen for 17 seconds (500 m divided by 28 m per sec = 17.6 seconds).[5]In either of Mr Downie’s versions of his observation of the motorcycle, that either he did not see the motorcycle until it was beside his truck or alternatively he saw the motorcycle that was 30 metres behind his dog trailer, it is plain that Mr Downie has failed to keep a proper lookout for the motorcycle. Had Mr Downie checked his mirror he ought to have seen Mr Spencer’s motorcycle some considerable distance back and then he ought not to have commenced a right-hand turn into the Oppermann property as it was not safe to do so. It is plain that Mr Spencer has failed to keep a proper lookout.
  2. [9]
    I reject Mr Downie’s evidence that he had a “look” at the “start”[6]because, if he did, he would have been able to see the motorcycle behind his truck and trailer and been able to observe its speed and then he would not have turned.
  3. [10]
    It is far more difficult to resolve the issue raised by paragraphs 3(f) of the Statement of Claim and 4(a) of the Amended Defence, namely, whether Mr Downie had activated the right-hand indicators of the Kenworth T401 and trailers well prior to the accident occurring.

Activation of indicators

  1. [11]
    Mr Spencer’s evidence was that the right-hand indicator on the truck and trailers were not activated and that is the reason why he attempted to overtake the slow moving prime mover and attached trailers. Mr Downie, the driver of the Kenworth is adamant he activated the right-hand indicator. There were no other eye witnesses. This aspect of the case turns entirely upon an assessment of the respective credit of the plaintiff, Mr Spencer, and the first defendant, Mr Downie.
  2. [12]
    Defence counsel argues that Mr Spencer cannot be considered an honest witness and points to several aspects of Mr Spencer’s history. The first is that Mr Spencer has not filed tax returns for years. Mr Spencer explained his, perhaps unique, position as follows:[7]

“MR SPENCER:  It was three and a half years before I put in a tax return. I did my tax return. I got a refund. The second time I did it was four years. I did a tax return, I got a refund. And my accountant said to me that the taxation department doesn’t care. As long as you don’t owe them money, they won’t chase you … Or fine you.

MR SPENCER:  …  It was just – I think it’s just one of those things, everyone hates is taxes. I’ve always got money back, like I always said.”

  1. [13]
    I reject the submission that a failure by Mr Spencer to lodge an income tax return to obtain his tax refunds adversely affects his credit.
  2. [14]
    Defence counsel also argues that Mr Spencer’s traffic and criminal history adversely affects Mr Spencer’s credit. Exhibit 8 is Mr Spencer’s traffic history. In Queensland, between 27 April 2010 and 31 July 2017, he has had two speeding offences and one low level drink driving offence. The first speeding ticket on 23 September 2011 resulted in a fine of $200 and a further speeding ticket on 25 June 2014 (post-accident) resulted in a $220 fine. On 25 June 2014, Mr Spencer also had his licence disqualified for seven months from holding a licence because he returned a blood alcohol test reading of .062. Although the defence could prove only one occasion where Mr Spencer lost his licence from drink driving, Mr Spencer admitted that he in fact lost his licence on three occasions for drink driving.[8]Mr Spencer admitted “as a young guy I was fairly reckless”.[9]This of course must be put in context.
  3. [15]
    Mr Spencer is currently 51 years of age having been born on 27 September 1967. Mr Spencer was 45 at the time of the accident on 21 February 2013. I accept Mr Campbell’s submission that Mr Spencer’s traffic record may be relevant to an assessment of economic loss however, it does not cause me to doubt Mr Spencer’s evidence.
  4. [16]
    Mr Campbell submits that the evidence of traffic infringements may be taken into account against Mr Spencer and that the absence of any evidence of traffic infringements may be taken into account in support of Mr Downie. Evidence of habit is admissible but it does not preclude findings contrary to usual habit.[10]Mr Spencer’s traffic history relating to breaches for driving under the influence provide little assistance. As Mr Spencer said “As a young guy I was fairly reckless” and there is no suggestion at all that Mr Spencer was in any way affected by alcohol at the time of the accident. Furthermore with respect to his speeding fines of 23 September 2011 and 25 June 2014 I conclude that they do not adversely effect Mr Spencer’s credit not suggest a “habit” of speeding particularly given Mr Spencer’s habit was to drive the road in question twice a day for most working days for a period of over a year and without incident.
  5. [17]
    With respect to the criminal history, Mr Spencer was “convicted of assault occasioning bodily harm or maybe occasioning grievous bodily harm in about 2006 after a drunken brawl outside a pub in Biloela.”[11]Mr Spencer admits to another assault occurring on 5 May 2011 in Gayndah apparently near the Gayndah police station after he and his colleague had been drinking alcohol.
  6. [18]
    Mr Spencer admitted the conviction and commented:[12]

“It never occurred outside the Gayndah Police Station. It was the house across the road from Gayndah and it wasn’t an assault. It was just – because I had one little red mark on his neck.”

  1. [19]
    The effect of the assaults was that Mr Spencer received “a letter from Qbuild saying that I was not to work on their jobs.”[13]It is noted that the record of assault did not prevent Mr Spencer from obtaining employment nor continuing his employment with Colquhoun Electrical and then Mundubbera Electrical. I further note that the assaults are not offences of dishonesty. In one of the many examples of his admissions against his own interests Mr Spencer readily conceded that he was an aggressive person when provoked.[14]Whilst the 2006 and 2011 convictions for assault do not reflect well on Mr Spencer they do not cause me to doubt Mr Spencer’s honesty nor the reliability in providing evidence concerning the motor vehicle accident of February 2013.
  2. [20]
    As to Mr Spencer’s antecedents I accept the evidence of Mr Seth. Mr Seth together with his wife Mrs Seth were the employers of Mr Spencer at the time of the accident. Mr Seth described Mr Spencer as a “very conscientious” worker.[15]Mr Seth was so impressed with Mr Spencer that he went out of his way to make approaches to the Electrical Contractors’ Association in Queensland in order to help Mr Spencer obtain information to allow him to become fully qualified as an electrician. Mr Seth was hoping that Mr Spencer could become qualified as he had plans that Mr Spencer would take over the business of Mundubbera Electrical when Mr Seth retired at age 70. That did not occur as the accident intervened.
  3. [21]
    As to his punctuality, Mr Seth said of Mr Spencer that he was “very rarely late. He usually arrived fairly much on time.”[16]This may be contrasted with Mr Spencer’s statement against interests to police at the hospital after the accident, albeit when he was affected by morphine, that: “I’m running late every morning. They’ll tell ya.”[17]Mr Seth who had conducted his business of Mundubbera Electrical for 40 years and had vast experience, said of Mr Spencer’s skill that Mr Spencer had the necessary skills to do whatever was asked of him.[18]
  4. [22]
    In his evidence-in-chief Mr Spencer presented as a friendly and enthusiastic witness who answered all questions in an open fashion. Mr Spencer’s version of the accident in evidence-in-chief is as follows:[19]

“MR GRANT-TAYLOR: Mr Spencer, what I want you to do, if you would, is to tell his Honour about your journey towards work that day, giving as much detail as your recollection serves of what occurred, start for example when you left home at Abercorn. Can you do that, please?

MR SPENCER:   Okay. I left Abercorn at roughly 7.30. I used to like to try and leave about 20 past 7 which would usually get me to roughly 8 o’clock at some point. And left Abercorn, travelled down Abercorn Road. I passed one car along Abercorn Road, which is the librarian, which used to leave about the same time as me every day, but used to travel slowly down the Abercorn Road. I then left Abercorn Road, turned right onto Burnett Highway, travelled down Burnett Highway, usual route, very little traffic, no traffic. I think I passed one other car. Then approaching probably a kilometre before Eidsvold I came around a bend and then there’s a slight dip and a straight run into – into Eidsvold. As I came round the bend, I noticed a truck, a semitrailer about between 100 – 150, 200 metres in front of me.

I had no idea what speed it was doing. Came up behind the truck for a split-second, I guess, slowed down, I didn’t have to brake, came up behind it for a split-second, noticed no brakes or indicators on the truck, put my indicator on before looking – because I had pulled behind the truck because there’s a dip just down the road which can potentially hide a car, so thus me not overtaking the truck straightaway. So I briefly pulled in behind the truck, saw that there was no cars in that dip, put my indicator on, proceeded to – accelerated, proceeded to overtake the truck. As I got just before the back of the truck, about level with the wheels of the dog on the truck, I noticed that the front of the truck was starting to encroach into my lane as I was overtaking. I look at that split-second to make sure there was no indicators on, he wasn’t just wandering and then I saw the farmer’s driveway and I thought, ‘Oh my God, this guy is going into this driveway’. That’s when I thought I was going to head straight under the truck, so applied the brakes and tried to steer out of the way because I knew the front of the truck was going to end up right in front of me. At some point, the bike must have fallen over and I must have lost consciousness because I don’t remember anything after that except for getting walked out of the ditch.

MR GRANT-TAYLOR: And was that your next recollection of events, being walked out of a ditch?

MR SPENCER: Yes.”

  1. [23]
    I considered it noteworthy that Mr Spencer commenced his version with an admission against his interest that he left his home at roughly 7.30am which is approximately 10 minutes after the time he usually would leave. Importantly, Mr Spencer’s sworn version accords with his pleaded version of the accident.
  2. [24]
    Exhibit 14 is the transcript of the police interview with Mr Spencer at the Eidsvold Hospital. Despite the serious injuries that he had suffered, Mr Spencer told the police officers in the very first question that he was feeling “not too bad”.
  3. [25]
    Mr Spencer was then interrogated by police officers with a view to obtaining admissions from him that he committed an illegal act despite the fact that he had taken a large quantity of morphine and despite the fact that he had suffered a head injury. Indeed his attending nurses informed police on multiple occasions that it was inappropriate that he be questioned. Mr Spencer disagreed with his nurses and volunteered answers to all police questions claiming he was “quite happy”. I note on page 2 of the transcript[20]the nurse first intervened suggesting that Mr Spencer ought not to be questioned. On page 4 a different nurse interrupted stating to the police officers:

“I’m sorry sir my patient is my concern. This man has had possible head injuries, he’s had pain relief he is probably not in a fit condition.”

  1. [26]
    Mr Spencer told his nurse “I’m quite happy to talk about it, about it, thanks for your concern.”  The nurse asked again “are you sure you’re all right to answer to these questions … [b]ecause you don’t have to … [y]ou’ve had medication and everything. And I’m concerned about you answering questions that’s all.”[21]Mr Spencer is recorded to reassure the nurse that “I’m fine”. Furthermore, I note on page 6, Mr Spencer makes another admission against his interest, namely, that the speedo on his motorcycle was not working and had not been working for a week due to a broken cable.
  2. [27]
    It is apparent that there was far more debate between the two nurses and the police officers and then the police officers and Mr Spencer. On page 8 of the transcript of interview:[22]
“NURSE: his pulse is going up because he’s being interrogated
SNR CONST EDMONDS: he’s not being interrogated, Miss. You’re obviously very anti-police or something, aren’t you?
NURSE: No I am not. And don’t try and pull that stuff. My patient is my concern.
SNR CONST EDMONDS: he has not indicated that he does not want to be interviewed
NURSE: I’m just concerned about his pulse.
SNR CONSTABLL EDMONDS: I understand about his pulse, but he can stop any time he wants, ok? But the sooner we get it out of the way the better.
CHRIS [SPENCER]: All I am angry about is I didn’t see any brakes lights and I didn’t see any indicators.”
  1. [28]
    On page 10 of the transcript Mr Spencer said:

“I’ve got a fractured clavicle or a broken shoulder blade, one of the two. Like, I said, I am mostly angry because no indicator, no indicator … And, it’s a big long truck and I would have seen fifteen flashing yellow lights.”[23]

  1. [29]
    It is worthwhile considering the transcript because it contains Mr Spencer’s version at Eidsvold Hospital at 10.15am on the morning of the accident. It is largely consistent with his evidence and his pleaded version. It is a powerful prior consistent statement recorded whilst Mr Spencer was at the severe disadvantage of being seriously injured, having suffered a head injury and being administered morphine. I conclude Mr Spencer’s factual allegations concerning the accident are a plausible and consistent version of facts and provided by Mr Spencer in a credible manner.
  2. [30]
    Defence counsel submits that Mr Spencer’s evidence ought to be rejected because his version of the accident with respect to the first observation of the Kenworth at about 200 metres ahead of him beyond the bend at T1-9 l 5 differs very significantly from the facts that were opened at T1-3. At T1-3 during the opening, Senior Counsel for the plaintiff said of the plaintiff’s evidence “[h]e will say that he went through Eidsvold and was continuing south. He’ll say that shortly after passing through Eidsvold he observed ahead of him, at a distance that may have been as much as – as much as a kilometre ahead of him, the Kenworth truck being driven by the first defendant, Mr Downie.”  As stated above it is plain that the accident occurred before any of the vehicles involved had reached Eidsvold and it is common ground that the opening is in error in this regard. With respect to the estimated distance of as much a kilometre ahead it is inconsistent with Mr Spencer’s evidence. However Mr Spencer’s evidence is consistent with his version provided in the transcript of the police interview of 21 February 2013.[24]
  3. [31]
    The defence case is that the distance of the straight prior to the driveway is some 500 metres. Mr Spencer expressly agreed with that distance of 500 metres.[25]Mr Spencer expressly accepted that there is a clear vision from the crest of the hill for about 500 metres.[26]As it is common ground that the straight was approximately 500 metres, that is, from the bend to the right hand turn into Oppermann’s Transport, it is Mr Spencer’s consistent evidential version that the truck was approximately 200 metres from the bend and moving towards Oppermann’s Transport when he first observed it.[27]It was put to Mr Spencer that when he came around the corner the truck was 500 metres ahead of him.[28]Mr Spencer did not accept that the truck was 500 metres ahead of him when he first observed the truck. I accept that Mr Spencer’s evidence is inconsistent with that opened with respect to the collision occurring to the south of Eidsvold and Mr Spencer’s observations of the truck being up to one kilometre ahead. I accept that the opening is in error in respect of both of these matters and I prefer and accept the consistent evidence of Mr Spencer in examination-in-chief, in cross-examination and which accords with what is set out in the transcript of the police interview.[29]
  4. [32]
    There are a series of photos of the bend and the straight prior to the intersection contained in Exhibit 4. The photos reveal that the driver of a vehicle or a rider of a motorcycle would be able to observe any vehicle ahead on the straight only after it came around the bend. Counsel for the defendant relies upon photos of tyre marks shown in exhibit 5 as indicating that the braking manoeuvre taken by Mr Spencer occurred in close proximity to the broken white line in the middle of the Burnett Highway. That is plainly so. In cross-examination it was suggested that the tyre marks were somewhat supportive of Mr Downie’s version of the accident.[30]In particular it was put “you must have been within centimetres of colliding with the side of the truck?”[31]To which Mr Spencer answered “No” explaining that a motorbike does not turn like a car. The turn has to be “gradual”. It has to be recalled that the motorcycle according to Mr Spencer was travelling at about 100 kilometres per hour which is approximately 28 metres per second. Mr Spencer’s evidence is it was when he was attempting an overtaking manoeuvre that he noticed the front of the truck was “starting to encroach into my lane as I was overtaking. I looked at that split-second to make sure there was no indicators on, he wasn’t just wandering and then I saw the farmer’s driveway and thought, Oh my God, this guy is going into this driveway.”[32]
  5. [33]
    The location of the tyre marks in exhibit 5 are not inconsistent with Mr Spencer’s version. That is, that after having committed to overtaking the truck undertaking a gradual turn as motorcycles do, he was moving in the vicinity of 28 metres per second and he observes firstly the truck coming on to the wrong side of the road and then he observes the driveway, and then he understands the truck is heading into the driveway so he performs the emergency braking manoeuvre which leaves the tyre marks shown in exhibit 5. The tyre marks do not suggest as it was put to Mr Spencer that he came within centimetres of colliding with the side of the truck because the truck and trailers are moving albeit, at a significantly slower speed (10 kph or 2.8 metres/second) than Mr Spencer’s motorcycle. The positioning of the tyre marks in exhibit 5 are consistent with Mr Spencer’s evidence of performing a gradual turn from behind the dog trailer of the truck to attempt to overtake the truck and then realising the truck was in fact making a right hand turn thus requiring Mr Spencer to engage in emergency braking.
  6. [34]
    The first defendant Mr Downie is an experienced truck driver having driven for in excess of 40 years.[33]Mr Downie is extremely familiar with the accident area having driven down the Burnett Highway in the vicinity of Eidsvold approximately three times per week for 40 years. Mr Downie’s version[34]is that he was driving the Kenworth T401 tanker with a super dog trailer in a southerly direction on the Burnett Highway. Mr Downie says he was driving at approximately 70 kilometres per hour when he came around the top of a corner approximately into a 500 metre straight near the entrance to Oppermann’s Transport. With respect to his speed Mr Downie said:[35]

“Well, it’s hilly before you get there. You would be doing about 70 ks an hour when you come around the top corner, I would imagine.”

Mr Downie then said:

“Well, you just go back a gear and you put the engine brakes on and start slowing down because you know you’re going to turn off. … That’s what I would have done.”

  1. [35]
    Mr Downie then explained because he is towing a large trailer termed a “super dog” that:

“You’ve got to be nearly square to the driveway because there’s – you’ve got to go across a grid.

… Well, you’ve just go to slow down and you got to be nearly stopped to – to go straight otherwise your dog trailer pushes you, you know. You’ve got to be nearly straight to the ---.”

  1. [36]
    In an unusual question and answer[36](unusual because Mr Downie did not volunteer that he in fact applied his right hand indicator but rather it was led as follows):

MR CAMPBELL: “Okay. So at some stage did you apply the right-hand indicators?

MR DOWNIE:  You apply the right before you turn off probably 200 metres before the …

MR CAMPBELL: Okay. And do you recall doing that on the day?

MR DOWNIE: Yeah. Yes.

  1. [37]
    A concern I have with Mr Downie’s evidence is that it was not provided by Mr Downie but substantially led from him and then answered in the third person, namely, Mr Downie did not say that “I applied the right hand indicators before turning off” but rather “you apply the right hand indicators before you turn.”  That, joined with Mr Downie not deposing to his actual speed but the speed that he “would imagine” at 70 kilometres and importantly with respect to his driving stating “that’s what I would have done” suggests that his version of events is reconstruction based on past common practice rather than actual evidence of what he did or did not do on 21 February 2019.
  2. [38]
    Mr Downie confirmed that there are seven right hand indicators on the truck and dog trailer of the LED flashing light variety. As set out above, it was an admitted fact and common ground that there were no vehicles travelling in a northerly direction upon the Burnett Highway at or about the time of the collision. In this regard Mr Downie’s observations of any vehicles were critical and yet his evidence was:[37]

“MR CAMPBELL: Now, when you applied … these indicators, had you had any look around to see if there were other vehicles coming in either direction?

MR DOWNIE: There was none at the start, no.

MR CAMPBELL: Okay. So when was it that you noticed another vehicle?

MR DOWNIE:  When it was beside me.

….

MR DOWNIE: I would have been doing about 10 k an hour at the start

MR DOWNIE: I noticed on the side when I – when I was – when I was slowing down I see this motor bike coming beside me, next thing it was – it was laying over on the side and skating down the road.”

  1. [39]
    Mr Downie twice (at T2-9 l 31 and 39) referred to “the start”. The start being defined as the point where he was doing about 10 kilometres an hour which he says “would have been probably 100 yards – 100 metres probably from the driveway.”  In my view Mr Downie’s evidence is consistent only with the finding made above, namely that Mr Downie did not look in his side vision mirrors until just before he commenced to turn and when his truck and dog trailer were slowed to approximately 10 kilometres per hour. That time is the first time that Mr Downie ever observed the motorcycle and at that point it was beside his vehicle and beginning to lay over on its side and skate down the road.
  2. [40]
    Despite his clear evidence at T2-9 that Mr Downie first saw the motorcycle when it was beside him, Mr Downie changed his evidence at T2-11 to a version that he first observed the motorcycle when it was 30 metres behind his truck. Mr Downie changed his version that he did not see the motorcycle at all until it was beside him to a version at T2-11 that “you could just see it come up behind you and then there it was”. It is of concern that Mr Downie could not provide consistent evidence even within three pages of transcript. Of greater concern is Mr Downie’s evidence at T2-16 (lines 34-47) concerning his activation of indicators.
  3. [41]
    Mr Downie accepted that he had told the police that he had activated his indicators at least 500 metres before Oppermann’s yet his evidence in court was his indicators were activated at about 200 metres prior to Oppermann’s.[38]The 300 metre discrepancy is a startling inconsistency. Mr Downie tried to explain the discrepancy by suggesting “I thought it was you know, it’s just natural. You just turn them on.”  Mr Downie further[39]:

“It’s just a natural thing. You put them on when you’re coming down the straight and, like, you got to be careful when you put them on too early because people try and pass you.”

  1. [42]
    Mr Downie further said that when he was slowing down and coming into the straight he used his “integrated brake” which slows the vehicle without illuminating the brake lights of the vehicle. In his initial version Mr Downie did not say that he used his foot brake, which would have illuminated the brake lights on the rear trailer at all yet in his cross-examination he claims he did at least 200 metres before the turn off.[40]However his evidence was in terms of his usual practice i.e. “you use your brakes at least 200 metres before the turn-off slowing it down to slow down.”  The inconsistencies in Mr Downie’s evidence led me to reject his evidence. Mr Downie did not provide evidence in a convincing manner. His evidence was general and largely of his ‘practice’. I accept the evidence of Mr Spencer that the right hand indicator lights were not activated by Mr Downie prior to the accident.
  2. [43]
    The defendant called Mr Douglas Leifels a retired truck driver in support of the defence case. Mr Leifels had been a transport driver for some 38 years before retiring to Eidsvold. Mr Leifels evidence is that after having dropped his granddaughter to the bus stop he was driving in a southerly direction upon the Burnett Highway probably seven kilometres north of Eidsvold when:

“he came up behind me and was attempting to pass me probably on the corner where I was probably doing about 80 kilometres an hour.”[41]

  1. [44]
    Mr Leifels described the corner or bend as having dual double lines and when it was put to Mr Leifels (in examination-in-chief): “And was he over the lines, or not? – I estimated he was yeah.”  Mr Leifels then added that after he was overtaken “he gave the bike a bit of throttle and probably rose up on one wheel and a little and then gone.”[42]Mr Leifels did not provide a speed of the motorcycle but confirmed his speed as being about 80 to 85 kilometres per hour.
  2. [45]
    Although Mr Leifels would not venture a speed of the motorcycle Mr Spencer, in the transcript of the police of interview, over-estimated Mr Leifels’ speed at approximately 90 kilometres per hour and admitted that he might have been travelling up to 120 kilometres per hour when performing the overtaking manoeuvre.[43]Mr Spencer repeated that admission in his cross-examination. Mr Spencer admitted overtaking another vehicle, that he was possibly travelling 120 kilometres an hour[44]but categorically denied raising his motorcycle on to the rear wheel. Mr Spencer said of riding a motorcycle on a rear wheel:

“I’ve never done that one in my life and going on the bend would have been even a greater feat … I’ve never been confident enough even to attempt one, especially knowing that your bike is going to sail down the road if it all goes pear shaped.”

  1. [46]
    I accept Mr Spencer’s evidence that he did not perform a wheel stand manoeuvre or otherwise caused the motorcycle to ride on its rear wheel only and that Mr Spencer’s evidence that that had “probably” occurred ought to be rejected. Mr Leifels was an extremely defensive witness under cross-examination. I do however accept Mr Leifels’ evidence that his vehicle was overtaken and Mr Spencer’s admission that it may have been at a speed of up to 120 kilometres per hour. Mr Leifels’ evidence that the overtaking manoeuvre occurred on a bend and over a double white line was raised but not specifically put to nor specifically denied by Mr Spencer.[45]The corner where the manoeuvre was said to have occurred was not identified by reference to any map or any position other than it being perhaps seven kilometres prior to the accident site. The positioning of the curve and the double white line in reference to any broken lines was not the subject of any evidence. Rejecting, as I do Mr Leifels’ evidence that Mr Spencer caused his motorcycle to be ridden on the rear wheel alone and absent any careful evidence as to the type of corner I cannot reach any conclusion as to the level of recklessness, if any, of the earlier manoeuvre. Moreover Mr Leifels’ evidence was not in fact that the passing manoeuvre occurred on a corner but rather it was “probably on the corner”,[46]which later changed as follows:[47]

“MR CAMPBELL:  And where were you when he overtook you in relation to the bend?

MR LEIFELS:  On the corner.”

  1. [47]
    With respect to Mr Liefels swore evidence concerning “other” tyre marks on the Burnett Highway,[48]it is difficult to assess this evidence because the evidence-in-chief was brought forth by a leading question. In particular, in respect of the tyre marks at or near the accident scene, which are accepted as being accident related, prior to viewing exhibit 5, Mr Leifels mistakenly described these tyre marks as being a straight line whereas they are shown in exhibit 5 to be a straight line with a distinctive sharp curve at the entrance to Opperman’s Transport entrance. Mr Leifels swore in evidence that on the day after the collision (at T2-24) he attended upon the accident scene and some 200 metres north of the accident area he found a further set of tyre marks 10 to 20 metres in length near a bump in the middle of the road, the bump being “dead set in the middle of the road”.[49]
  2. [48]
    It was apparently a part of Mr Leifels’ theory and/or the defence case that Mr Spencer had caused the tyre marks by locking a wheel of his motorcycle for some 10 to 20 metres some 200 metres prior to the Opperman’s Transport entrance but then proceeded before the eventual skidding and sliding manoeuvre which occurred at the time of the accident. Mr Leifels however cannot say when the 10 to 20 metre tyre marks 200 metres from the collision were placed upon the road way. Mr Leifels accepted they could have been placed before, on the day of, or on the day after the incident.
  3. [49]
    In my view it is speculation to attribute those tyre marks to the motorcycle ridden by Mr Spencer. If I am incorrect and the tyre marks were in fact caused by Mr Spencer’s motorcycle then it would prove that at a considerable distance of some 200 metres prior to the collision site Mr Spencer had rapidly decelerated. In the latter scenario, that is that Mr Spencer violently braked his motorcycle 200 metres prior to the collision site would lead me to conclude that the motorcycle was travelling at a very slow speed as it approached the rear of the truck and dog trailer. That is inconsistent with the evidence of both Mr Spencer and Mr Downie, the evidence related to tyre marks and the nature and extent of the injury sustained by Mr Spencer.
  4. [50]
    Rejecting as I do, however, the evidence that the “other” tyre mark is related to the accident I find that Mr Spencer’s evidence as to the version of the accident ought to be accepted. I find that Mr Spencer was riding his motorcycle in a southerly direction upon the Burnett Highway at about 100 km/h when he observed the Kenworth and super dog trailer, that he slowed his motorcycle down without braking it, checked the road ahead was clear, observed that the truck and trailer’s brake lights were not illuminated indicating it was braking, observed to see the several indicator lights on the truck and trailer were not activated and then commenced to overtake the truck. I accept Mr Spencer’s evidence that in attempting to overtake the truck he activated his right hand indicator of his motorcycle, lent to his right and then accelerated his motorcycle. I find that when Mr Spencer was positioned close to the the rear wheels of the dog trailer Mr Downie caused the truck to commence turning to the right at which point and in a “split second” Mr Spencer applied his brakes, locked up his rear wheel causing the tyre mark as depicted in Exhibits 5 prior to losing control of his motorcycle and sliding off his motorcycle into a ditch on the western side of the Burnett Highway.

Disposition and liability

  1. [51]
    I find the plaintiff has proven the breach of duty of care of the defendant as particularised in paragraphs 4(a), (b) and (c) of the Statement of Claim, namely, that Mr Downie was negligent in failing to activate the right hand indicators on the Kenworth truck and trailer, that Mr Downie failed to keep a proper lookout for vehicles behind his Kenworth truck and trailer prior to commencing the right hand turn, and that Mr Downie attempted to turn into the Opperman’s property when it was not safe to do so because of the position of the plaintiff’s motorcycle. Based upon the factual findings set out above, I reject the defendant’s argument for contributory negligence as pleaded in paragraphs 4(e) and 5 of the Amended Statement of Claim as I find that the plaintiff Mr Spencer:
  1. (a)
    did not attempt to overtake in circumstances that were unsafe to do so;
  1. (b)
    was travelling at a speed in the vicinity of 100 kilometres per hour which was not excessive in the circumstances;
  1. (c)
    did not fail to observe the right hand indicators on the Kenworth T401 as the first defendant did not activate the right hand indicators;
  1. (d)
    did not fail to maintain control or any proper control of the motorcycle as he was faced with an emergency which had been caused absent of any fault on his behalf.
  1. [52]
    In addition to general findings on credit, I accept the argument advanced by Senior Counsel for the plaintiff that Mr Downie had no specific reason for activating his right hand indicator given that on Mr Downie’s evidence there was not any traffic ahead of him or behind him. Accordingly Mr Downie’s sole reason for activating the indicator was habit and was good and safe practice. This is akin to a suggestion from Mr Downie that he is incapable of making an error, particularly in an act of turning into Oppermann’s Transport which was an action frequently required of him. I cannot accept that proposition.
  2. [53]
    Similarly in respect of Mr Spencer there is force in the argument that had Mr Spencer attempted the overtaking manoeuvre of the Kenworth truck and dog trailer whilst it was indicating to turn right that would amount to nothing less than suicidal conduct by Mr Spencer. I consider that it is far more probable than not that Mr Spencer is correct in his assertion that the right hand indicator lights of the truck and/or trailer were not activated at or near the time of the accident.[50]
  3. [54]
    I find for the plaintiff in respect of liability and find that the defendant has not proved contributory negligence.

Quantum

  1. [55]
    Mr Spencer sets out the injuries which he alleges he suffered in paragraph 5 of the Statement of Claim:

“(a) A closed head injury;

  1. (b)
    A comminuted fracture of the left clavicle;
  1. (c)
    Soft tissue injuries to the left shoulder;
  1. (d)
    Internal injuries including pulmonary oedema of the lungs;
  1. (e)
    Multiple prominent lacerations of the spleen with associated haemorrhaging;
  1. (f)
    Deep lacerations to the left elbow and forearm;
  1. (g)
    Lacerations and soft tissue injuries to both knees, especially on the right side;
  1. (h)
    Soft tissue injuries to the left iliac crest (lateral hip);
  1. (i)
    Multiple bruises and abrasions; and
  1. (j)
    Scarring.”
  1. [56]
    The Amended Defence admits all of paragraph 5 with the exception of paragraph 5(a), the closed head injury yet by paragraph 3(cc) the defendant alleges that the plaintiff suffered “a period of loss of consciousness” soon after the accident. Mr Spencer says that he lost his memory for the point of where his motorcycle fell over until he was being walked out of the ditch.[51]I therefore accept that Mr Spencer has proved he suffered from a closed head injury in addition to the admitted nine injuries in paragraph 5.
  2. [57]
    Mr Spencer’s damages are to be assessed in accordance with the provisions of the Civil Liability Act 2003 (Qld) (Reprint 1.2012) and in accordance with the Civil Liability Regulation 2003 (Qld). I respectfully accept proper interpretation of and application of the Act as set out in the judgment of McMeekin J in Allwood v Wilson and Anor [2011] QSC 180 in particular at paragraphs 19 to 24.
  3. [58]
    After the accident Mr Spencer was taken by ambulance to the Eidsvold Hospital where despite his deteriorating health was interrogated by police officers.[52]Mr Spencer was so ill he was then airlifted by helicopter from Eidsvold to Bundaberg Hospital where he was diagnosed as suffering from fractured left ribs, a fractured left clavicle, a lacerated right knee, a ruptured spleen and a lacerated left elbow.
  4. [59]
    At Bundaberg Hospital Dr Phillips performed an emergency splenectomy noting that Mr Spencer had internal bleeding and was found with approximately a litre of blood in his abdomen. In addition, Dr Philips washed and debrided the 4 cm laceration to Mr Spencer’s left elbow and the 2 cm laceration to Mr Spencer’s right knee which had entered the bursa of the right knee. On 23 February 2013 Mr Spencer was returned for surgery and removal of more foreign bodies with closures of his wounds. Approximately three months after the emergency splenectomy Mr Spencer developed an incisional hernia. On 17 February 2015 Mr Spencer was returned to surgery where Dr Phillips performed a mesh repair of the incisional hernia.
  5. [60]
    Of the multiple injuries it is the internal and abdominal injuries, the left shoulder and right knee injury which have caused Mr Spencer the most pain and suffering.

General damages

  1. [61]
    By paragraph 7(a) of the Statement of Claim it is alleged that the dominant injury is the left shoulder injury which is properly categorised as a 97 moderate shoulder injury. By paragraph 9(a)(ii) of the Amended Defence the defence admits the dominant injury is an Item 97 moderate shoulder injury which carries an ISV range of 6 to 15. Whereas by paragraph 7(a) of the Statement of Claim the plaintiff seeks a 25 per cent uplift of the dominant ISV of 15 ie an ISV of 19. The defendant in paragraph 9(a) of the Amended Defence pleads that the injury ought to be assessed towards the midpoint of 97 ie an ISV of approximately 10 or 11.
  2. [62]
    The left shoulder injury sustained by Mr Spencer has been agreed to by the parties as an Item 97 moderate shoulder injury with an ISV range of 6 to 15. Within Item 97 the first additional comment about the appropriate level of ISV is “an ISV at or near the bottom of the range will be appropriate if there is a whole person impairment for the injury of 6 per cent.”  According to Dr Miller the accident caused impairment to the left shoulder at 7.2 per cent. According to Dr Gillett the level of impairment of the left shoulder is 9 per cent although the vast majority of this relates to pre-existing change in the left shoulder girdle. As discussed below I prefer Dr Miller’s opinion which results, as the defendant concedes, in a midpoint assessment for the left shoulder injury of an ISV of about 10 or 11.
  3. [63]
    Despite the common position of the parties the medical evidence is clear. The evidence shows that Mr Spencer’s splenectomy cannot be considered an injury of minor consequence. The effect of the splenectomy upon Mr Spencer is explained by Dr Miller in his report dated 20 April 2015 as follows:[53]

“He is also susceptible to infection following his splenectomy and will require immunisation and antibiotic therapy for life. This is to avoid overwhelming post splenic sepsis which is usually due to encapsulated organisms such as Meningococcus, Haemophilus and Pneumococcus. He should have annual influenza vaccine, pneumococcal, meningococcal and HIB vaccines. He should also have 250-500 mg of amoxicillin 12th hourly for life. The mortality from overwhelming post splenectomy infection is between 38 and 70% despite treatment. Patients who have a splenectomy have 2.5 increased risk of an infection than normal patients.”

  1. [64]
    Mr Spencer has undergone a splenectomy with a lifelong risk which is not minor (the risk increases 2.5 times) of ongoing infection or disorder. Item 80 of the Regulation (current as of 1 July 2012) provides:

80 Loss of spleen  (complicated)

 

8 to 20

 

Example of the injury 

Loss of spleen if there will be a risk, that is not minor, of ongoing internal infection and disorders caused by the loss

Comment about appropriate level of ISV

  • An ISV at or near the bottom of the range will be appropriate if the injury leads to a splenectomy, with intermittent symptoms of pain, nausea and vomiting that settle.
  • An ISV at or near the middle of the range will be appropriate if –
  1. (a)
    the injury leads to a splenectomy, with serious infection after the splenectomy; and
  1. (b)
    the infection requires surgical or radiological intervention.
  • An ISV at or near the top of the range will be appropriate if the injury leads to a splenectomy, with portal vein thrombosis after the splenectomy.

 

  1. [65]
    The spleen injury has been assessed as causing no permanent impairment. Dr Miller has assessed 2 per cent for the scarring however this does not result in an assessment under Item 155 as the scarring is the result of the laparoscopic surgery for the splenectomy, see general comment •4 under the introduction to Part 7 of Schedule 4 of the Regulation. I find the loss of spleen is a category 80 injury, albeit of the bottom of that range, as Mr Spencer’s symptoms appear to have settled.
  2. [66]
    It seems to me that the development of the hernia ought to be considered a separate injury in the nature of being an Item 84 minor hernia with an ISV range of 0 to 5.
  3. [67]
    The injury Mr Spencer sustained to his right knee being a deep laceration to his right knee bursa does not fit neatly within the descriptors to Item 138 Serious Knee Injury or Item 139 Moderate Knee Injury. By degree of permanent impairment assessed by Dr Miller at 7.2 per cent the injury more neatly fits into Item 139 but by description and not with reference to permanent impairment the injury more conforms to Item 138. Item 138 of the Regulation provides as follows:

138 Serious knee

 injury

Comment

The injury may involve –

  1. (a)
    ongoing pain, discomfort, limitation of movement, instability or deformity; and
  1. (b)
    a risk, in the long-term, of degenerative changes caused by damage to the joint surfaces, muscular wasting or ligamentous or meniscal injury.

Example of the injury

A leg fracture extending into the knee joint, causing pain that is constant, permanent and limits movement or impairs agility

Comment about appropriate level of ISV

An ISV at or near the middle of the range will be appropriate if there is a ligamentous injury, that required surgery and prolonged rehabilitation, causing whole person impairment of 15% and functional limitation.

11 to 24

  1. [68]
    As Dr Gillett did not examine Mr Spencer’s right knee[54], Dr Miller’s opinions concerning the nature and extent of Mr Spencer’s right knee injury is the only expert guidance. Dr Miller’s understanding of the injury accords with the Bundaberg Hospital records:[55]

“Yeah, and also the mechanisms of injury which I picked up from the hospital notes – you know, his high speed injury off a motorbike, struck his leg, deep lacerations to the right knee requiring surgical intervention. The report of the surgical – by the surgeon that the bursa of the knee was involved, so it’s a deep laceration into the knee joint. Bursa is a part of the knee joint. Lots of superficial lacerations through the skin [indistinct] actually into the knee joint. I felt the symptoms he’s got now are consistent with that and my physical findings are also consistent with that and that’s why I thought, that’s why I made – the diagnosis …”

  1. [69]
    At T1-40 l 23-25 Dr Miller referred to the hospital notes showing that the right knee bursa needed to be washed out and closed in a delayed procedure. Dr Miller commented:[56]

“The x-rays always help me but I think the history, the mechanism of injury, the history you take from the patient about their current symptoms and a physical examination takes precedence because I think in 40 years of practice I’ve seen people with terrible in x-rays degeneration and normal function and no symptoms and I’ve seen people with minor changes on their x-rays and significant problems. So that’s what I base that on.”

  1. [70]
    I accept Dr Miller’s reasoned opinions concerning the nature and extent of Mr Spencer’s right knee injury. Dr Miller does accept that the “incident” which occurred on 18 November 2014 appeared to have “had some aggravation of the degenerative process at that time too”[57]however there has been no attempt to define the nature and extent of any such aggravation.
  2. [71]
    The incident of 18 November 2014 seems to be another of the unfortunate incidents which has troubled Mr Spencer. Mr Spencer explained that he did not have good neighbourly relations with a “lady” who lived in Abercorn whom he considered to be a methylamphetamine addict. In particular Mr Spencer made it clear that the particular lady was not welcome in his home and this had caused some animosity leading to the incident. On 18 November 2014 the “lady” in question who Mr Spencer said was intoxicated and three other intoxicated persons ‘stormed into my house, hit me over the head with a glass bottle.’  Mr Spencer alleges that those four persons were charged with assault and as a result of being struck by the bottle Mr Spencer received a laceration to his scalp requiring some fourteen stitches which was treated at the Eidsvold Hospital. The laceration or the fourteen stitches was not observable on Mr Spencer’s scalp when he attended in court nor did Mr Spencer claim to have suffered any ill effect of that attack. Mr Spencer does admit however that during the assault and after he had been placed in a chair he was straining to get out of the chair and sustained a strain type injury of his right knee.”
  3. [72]
    According to the Eidsvold Family Practice Records[58]Mr Spencer does not often visit his general practitioner although he did attend on 1 December 2014 where the attending general practitioner Dr Kamara made the following notation:

“[Right] knee pain following an assault about 2 weeks ago. Previous injury to the same when he came collided with a truck early 2013. [Right] knee slightly swollen. Not red or hot though. Sutures on scalp wound remove. Would (presumably wound) clean.”

  1. [73]
    Mr Campbell accurately submits that apart from the hospital notes the entry of 1 December 2014 is the first occasion Mr Spencer’s right knee is recorded post-accident. That is accurate, however, as I have noted it would appear that Mr Spencer does not attend much upon his general practitioner and when he does the notes record very little.
  2. [74]
    Mr Spencer’s evidence is that between the accident on 21 February 2013 and the assault of 18 November 2014, his right knee had given way on one occasion but he did not on that occasion fall to the ground and additionally in that period it was clicking and grinding.
  3. [75]
    Prior to the accident on 21 February 2013 Mr Spencer’s right knee was asymptomatic. Despite this, and despite x-rays and the presentation to degeneration being inconclusive Dr Miller describes a 10 per cent of his permanent impairment assessment of 8 per cent of the right knee injury to pre-existing degeneration as displayed radiographically and thus attributes a 7.2 per cent whole person impairment to the right knee injury sustained on 21 February 2013. Importantly as Dr Miller set out in his report of 20 April 2015[59]and re-emphasised in the joint report of Dr Gillett and Dr Miller dated 24 September 2018,[60]Dr Miller’s examination of Mr Spencer’s right knee showed a fixed flexion deformity of some 15 degrees. Accordingly in terms of the descriptors in Item 138 Serious Knee Injury the evidence shows that Mr Spencer has ongoing pain, discomfort, limitation of movement and some instability in his right knee (or four out of five of the descriptors in Item 138(a)). Additionally in terms of Item 138(b) Dr Miller has opined[61]that of the likelihood of long term degenerative change in the right knee:[62]

“It is likely that his knee condition will continue to deteriorate with the further passage of time and that he may need investigation and possible surgery, initially in the form of an arthroscopy. If arthroscopic treatment is unable to relieve his problem it is likely he may require total knee replacement in ten years time.”

  1. [76]
    I conclude that it is appropriate to classify Mr Spencer’s right knee injury in Item 138 Serious Knee Injury with an ISV range of 11 to 24. As a consequence of this it is the Item 138 Serious Knee Injury which is the dominant injury. Of itself the right knee injury would be assessed at the very bottom of the range ie an ISV of 11. Although Mr Spencer suffers from pain, disability and impairment as a result of his left shoulder and right knee injuries he does not suffer from any pain in his abdomen at the point of his incisional hernia.
  2. [77]
    Mr Spencer does not claim to suffer any pain with respect to his splenectomy.
  3. [78]
    In view of multiplicity of injuries and the evidence in respect of the injuries which I accept, it is appropriate to increase the ISV for the dominant injury, the right knee injury, from its singular score of 11 up to but not exceeding the maximum ISV of 24. I do not accept the plaintiff’s argument for a further uplift of 25 per cent due the serious multiplicity of injuries as it seems to me that the right knee injury ought to be quantified of it by itself at the bottom of the range, the left shoulder by itself ought to be quantified in the middle of its own range 10 or 11, whereas the splenectomy ought to be quantified towards the bottom end of its range ie an ISV of 8 or 9. In those circumstances it is appropriate to uplift the dominant ISV score of 11 to 24 but not beyond the finding of an ISV of 24. An ISV of 24 quantifies general damages at $42,500.

Past economic loss

  1. [79]
    Mr Spencer’s history of manual work is set out in his Quantum Statement[63]. Accepting as I do Mr Seth’s evidence that Mr Spencer is a skilled electrical trade’s assistant I would regard it highly likely that but for the accident Mr Spencer would have continued working as an electrical trade assistant.
  2. [80]
    Mr Spencer explained that despite performing an electrical apprenticeship for about six years from mid-1985 to 1991 he did not pass his electrical examination as he had difficulty with mathematics. I accept Mr Seth’s evidence that but for the accident that Mr Spencer would have attempted to obtain his full qualification as an electrician however despite his determination to do so, I am unable to find that it was likely Mr Spencer would have passed his trade examinations and consequently whether he would have ever have taken over Mr and Mrs Seth’s business of Mundubbera Electrical. Even if Mr Spencer did qualify there is no evidence as to what the likely earnings Mr Spencer would have enjoyed had he been a trade qualified electrician owning Mundubbera Electrical.
  3. [81]
    I accept Mr Spencer and Mr Seth’s evidence of their plans for Mr Spencer to become qualified as an electrician and take over the business of Mundubbera Electrical and I consider that to be a positive vicissitude in the assessment of loss of economic capacity even though Mr and Mrs Seth have ceased trading as Mundubbera Electrical. There are, according to Mr Seth three or four other electricians in Mundubbera and accordingly it is highly probable that Mr Spencer would have continued to earn the same amount of wages that he earned whilst working for Mundubbera Electrical as a tradesman’s assistant. Had Mr Spencer been in fulltime employment since the accident he would have earned the following sum:

Period

Basis of Claim

Amount

21/02/2013 – 30/06/2013

$675.10 net/wk for 14 weeks

$9,451.40

01/07/2013 – 30/06/2014

$676.10 net/wk for 52 weeks

$35,157.20

01/07/2014 – 30/06/2015

$672.10 net/wk for 52 weeks

$34,949.20

01/07/2015 – 30/06/2016

$671.56 net/wk for 52 weeks

$34,921.12

01/07/2016 – 30/06/2017

$672.70 net/wk for 52 weeks

$34,980.40

01/07/2017 – 30/06/2018

$672.70 net/wk for 52 weeks

$34,980.40

01/07/2018 – 12/04/2019

$672.70 net/wk for 41 weeks

$27,580.70

Total

 

$212,020.42

  1. [82]
    Mr Spencer concedes that had he not been injured he would not have worked every week from 21 February 2013 to the present. In particular, Mr Spencer’s personal circumstances are that he resides at 1 Fairy Street Abercorn with his partner Gail. Gail emigrated from Glasgow some years ago and has more recently received her Australian Citizenship. During several periods of time which are currently undefined but prior to 2019 Gail was required to return to Glasgow to await the receipt of her citizenship. Mr Spencer was in Glasgow with Gail from 25 April 2015 for two weeks, from 19 October 2015 for 26 weeks and from 28 March 2017 for eight weeks. Mr Spencer attests and I accept[64]in respect of the two week period from 25 April 2015 and eight weeks from 28 March 2017 that he would have used his annual leave entitlements for the vacation in Glasgow during those periods had he not been injured. Further Mr Spencer accepts that during the period of 26 weeks from 19 October 2015 he would have required some leave without pay but says and I accept that he would not in fact have gone overseas for 26 weeks had the accident not occurred because he would have been flat out working and accordingly could only have gone overseas for a far shorter period. Complicating matters further is that there is another unfortunate incident in January 2016.
  2. [83]
    On 19 January 2016 whilst Mr Spencer was in Glasgow a couple next door were engaged in a violent domestic dispute whilst intoxicated. Because the female involved “wanted her partner to go” Mr Spencer “intervened” on her behalf however instead of accepting Mr Spencer’s admonishment the male assailant turned his aggression towards Mr Spencer stabbing him once in the neck, twice in the middle of the chest, four times in the left side of the body and once in the middle of the left lower arm.
  3. [84]
    Although he sustained multiple stab wounds the wounds were not life threatening. Mr Spencer was hospitalised for two days and thereafter made a full recovery. Although there is no specific evidence upon the issue I would conclude that at least for a few weeks as a result of the stabbing in January 2016 Mr Spencer would not have been able to undertake any employment. Accepting as I do Mr Spencer’s evidence that he would not have gone overseas for 26 weeks had he not been injured because he would have been flat out at work I consider that absent the injury it is likely that Mr Spencer would have holidayed in Glasgow for a period of approximately eight weeks i.e. the similar amount of time to the 25 March 2017 visit to Glasgow. In addition and because of the injuries sustained in the knife attack of 19 January 2016, I find those injuries would have disabled Mr Spencer for a further three to four weeks. Accordingly I consider it reasonable to deduct 12 weeks from the total holiday period of 26 weeks as being the 12 week period where as a result of holiday and injuries Mr Spencer would have been on leave without pay. That will reduce economic loss by $8,072.40. Accordingly I find that Mr Spencer has suffered $203,948.02 in past economic loss ($212,020.42 minus $8,072.40). In addition Mr Spencer is entitled to interest net of his work cover benefits at the rate of 1.16 per cent.

Loss of economic capacity

  1. [85]
    Mr Spencer is currently 51 years of age having been born 27 September 1967. Mr Seth’s evidence convinces me that there is a demand for electricians and electrical tradesperson in the Mundubbera and given Mr and Mrs Seth conducted their business for more than 40 years then I accept there would have been work available to Mr Spencer at the least as an electrical tradesman had Mr Spencer wished to work until aged 70, Mr Seth’s retiring age. It is plain also that Mr Spencer is not a wealthy man and absent the injury would have been likely to have continued working at the very least until the “normal” retirement age of 67 years. Mr Seth worked until he was 70.
  2. [86]
    I assess that Mr Spencer’s economic capacity at $672.70 net per week. As a result of his injuries Mr Spencer is no longer fit for manual work. In this regard I accept the opinions of Dr Miller and Mr Ng.

Education training and experience (and personality type)

  1. [87]
    Mr Spencer is wholly unsuited to sedentary work. Mr Spencer provides evidence, which I accept that he has constantly looked for appropriate employment and has not found any in the last five years. Mr Spencer is required to make enquiries of 10 potential employees each fortnight and despite this he has not yet received one single interview. Mr Spencer has a most limited residual income capacity which is probably best described as theoretical. Notwithstanding this generous concessions have been made by Senior Counsel on behalf of the plaintiff that Mr Spencer’s economic loss ought to be discounted by one-third ie a Hopkins type discount.[65]A discount of a third as explained by Senior Counsel reflects both the limited residual income capacity of which Mr Spencer enjoys and the effect of the accepted pre-existing degeneration in Mr Spencer’s left shoulder girdle.
  2. [88]
    In his report Dr Gillett had proffered an opinion, said to be an estimate based on experience, that absent the incident Mr Spencer would have suffered significant symptoms in his left shoulder within two to three years of the accident of 21 February 2013. I consider that Dr Gillett’s opinion on the issue is properly expressed as an estimate and that such estimates can’t “be undertaken with any reasonable measure of precision”.[66]Dr Gillett’s great experience is necessarily based on the treatment of symptomatic patients. It is difficult to accept, and has not been explained, how any expert can proffer a reliable opinion about when an asymptomatic pre-existing condition would necessarily have become significant and to what extent symptomatic, in circumstances where the expert opinion is based not on any science but upon experience (even great experience) of treating symptomatic patients. It is not explained why treating symptomatic patients assists in the accurate prognostication for asymptomatic patients. Such statements are in the nature of a “bare ipse dixit” found objectionable by Lord Cooper, the Lord President in Davie v Magistrates of Edinburgh.[67]
  3. [89]
    In terms of the discharge of the Watts v Rake[68], Purkess v Crittenden[69] onus is explained by the Court of Appeal in Hopkins v Workcover Queensland. I accept Dr Gillet’s evidence[70]at that it is not possible to hypothesise as to when absent the accident Mr Spencer’s pre-existing degeneration in the left glenohumeral joint have caused him to cease work. Accepting as I do Dr Gillett’s evidence that Mr Spencer did suffer from asymptomatic pre-existing degeneration in his glenohumeral joint, I accept the defence counsel’s argument, essentially conceded by Senior Counsel for the plaintiff, that there ought to be a significant discount from the effects of the pre-existing left shoulder arthritis. This is more than adequately allowed for in the discount of one-third.
  4. [90]
    I assess the loss of economic capacity as a loss of $672.70 per week for 15½ years, 5 per cent discount factor 567.90, less one-third for all contingencies including pre-existing degenerative change in Mr Spencer’s left shoulder and right knee and any residual income earning capacity at the sum of $254,468.22. In addition loss of superannuation benefits ought to be allowed at 11 per cent, a reduction from the 11.33% approved in Heywood v Commercial Electrical Pty Ltd[71] because Mr Spencer is 51 years of age.

Care

  1. [91]
    Paragraph 7(h) pleads a claim for future gratuitous and/or paid care rendered to the plaintiff calculated at six hours per week at $35 per hour for 38 years (discount factor 902) the sum of $189,420. At trial Senior Counsel for the plaintiff expressly abandoned any future gratuitous care as the evidence did not come close to satisfying the requirements of s 59 of the Civil Liability Act.
  2. [92]
    Senior Counsel for the plaintiff limits the claim to future paid care and claims six hours per week based on the uncontested expert evidence of Dr Gillett and Mr Ng that Mr Spencer in fact has a reasonable need for six hours assistant per week. The parties have agreed $30 per hour is the appropriate rate. The defendant submits there ought not to be any allowance for future paid care. Although the expert evidence is unchallenged the actual evidence as to Mr Spencer’s need for assistance is contained at T1-93.
  3. [93]
    Mr Spencer is a resourceful, and it would seem, resilient man. Whilst living at Abercorn,  Mr Spencer’s evidence is that he does not pay anybody to do his garden as he has the benefit of living in the “drought bush” and in any event he has “got a sheep for grass. Some years it only needs to be mowed like once a year.”
  4. [94]
    As I accept Mr Spencer is a resourceful man and highly skilled in respect of manual tasks it would appear that there has been very little, if any, domestic assistance actually rendered to Mr Spencer as a consequence of his injuries and that which was rendered was rendered at a point in time during Mr Spencer’s recovery which, due to his incisional hernia was over a period of several months. As Mr Spencer has been unable to work, and is likely not to return to work he has many hours over which he can spread his domestic tasks. Whilst Mr Spencer continues to live with his partner Gail at 1 Fairy Street, Abercorn he may rely upon drought and a sheep in order to perform his gardening duties. However as Mr Spencer is only 51 years of age and has a statistical life expectancy of some further 33 years I cannot presume that he will always live at a place whose motor mowers can be replaced by sheep. I accept on principle that some allowance ought to be made for future paid care. It is difficult to know how long Mr Spencer will continue to live at 1 Fairy Street, Abercorn, certainly there is no suggestion that he has any desire to move elsewhere or that his relationship with his partner Gail is anything but stable. If one hour per week were allowed in paid care at the agreed rate of $30 for the next 20 years (discount factor 666) that would equate to an award of $19,980. In my view a fair award for future paid care is the limited sum of $10,000, notionally half an hour’s care if paid care or an allowance of $15 per week for the next 20 years.
  5. [95]
    I note that Fox v Wood[72] damages are agreed in the sum of $14,457.
  6. [96]
    Special damages are agreed at $19,936.62 and interest is agreed at $252.77.
  7. [97]
    Future special damages are not agreed. On behalf of the defendant it is submitted that $4,568 ought to be allowed being $2,500 for future medication and $2,068 for future GP consultations. Senior Counsel for the plaintiff seeks over $80,000 in future special damages as set forth in paragraph 99 of the plaintiff’s written submissions. The sums sought in the plaintiff’s submissions are supported by the unchallenged evidence the reports of Dr Geoffrey Miller and Mr Ng.
  8. [98]
    In respect of the injury to Mr Spencer’s right knee, the sum of $600 is claimed for future investigation of right knee pathology, a sum of $3,175 is for future surgery in the form of an arthroscopy of the right knee costing $4,050 deferred some five years and a further $14,736 is sought for the future surgery in the form of right knee arthroplasty costing $24,000 deferred for 10 years. Although the calculations are correctly performed the evidential basis of the calculations contained at page 8 of Dr Miller’s report of 20 April 2015 speak of a possible need for surgery initially in the form of arthroscopy and only if the arthroscopic treatment is unable to relieve the pain, a need for a total knee replacement in 10 years’ time. The evidence from Dr Miller which I accept, is a likelihood of the knee condition deteriorating would suggest there is at least an even probability of some type of surgery being required, be it an arthroscopy or an arthroplasty. I consider a fair reading of page 8 of Dr Miller’s opinion is that the right knee arthroscopy in five years is more likely than not to occur however there is no definitive evidence as to the prospects of the right knee arthroplasty being required. In those circumstances I consider it reasonable to allow approximately $3,000 for the arthroscopy but only quarter the cost of the arthroplasty ($3,648) and a small allowance of $352 for physiotherapy, a sum of $7,000.
  9. [99]
    Similar difficulties bedevil the proper quantification of the damages for future special damages for Mr Spencer’s injured shoulder. Dr Miller’s evidence concerning the need for surgery to the left shoulder is more precisely stated in his report of 21 October 2016 where Dr Miller expresses the view that the left shoulder replacement “will more likely than not occur within the next five years.”  As Dr Miller points out literature states that the overall revision rate for a total shoulder replacement is in the vicinity of 10 per cent over a 10 year period and in view of Mr Spencer’s age of 50 years that he would expect there would be a need for at least one further shoulder revision in his lifetime. Counsel for the plaintiff discount the cost of future surgery in the nature of a total left shoulder replacement and one revision surgery by one-third the costing of approximately $35,000. Given Dr Miller’s evidence is that the total shoulder replacement is more likely than not within the next five years I consider there ought to be some further discount to the $35,000. There needs to be a further discount to reflect Dr Gillett’s opinion, which I accept, that at some point the pre-existing shoulder degeneration would have affected Mr Spencer. I will allow $20,000 in respect of future shoulder surgery.
  10. [100]
    Counsel for the plaintiff seeks a further award of almost $16,000 for future physiotherapy again based on Dr Miller’s report. As is evident from Mr Spencer’s general practitioner records he is not the type of man who often attends for medical treatment. He does attend when he is stabbed or assaulted but otherwise, ordinarily does not. Furthermore it is unlikely that any of the less than 15 residents of Abercorn have qualifications in physiotherapy and it is notorious that it is difficult to obtain many medical and allied health services in rural Queensland. Whilst I accept Dr Miller’s opinion that it would be advisable for Mr Spencer to regularly attend for physiotherapy it is my assessment of Mr Spencer that will rarely occur. I consider that only a nominal sum of $1,000 ought to be allowed for future physiotherapy with respect of Mr Spencer’s left shoulder injury.
  11. [101]
    An award is sought for the 5 per cent risk at five years of developing a bowel obstruction. Dr Miller considers that the average time for bowel obstruction following surgery is 24 months and that time has now passed. I accept there is some risk of Mr Spencer suffering from a bowel obstruction in the future and as the risk is small the cost of treatment is discounted by 95 per cent (in counsel for the plaintiff submissions) to a sum of $385. I think it reasonable to allow that $385.
  12. [102]
    As Dr Miller opines there is a 10 per cent chance of recurrence of an incisional hernia which might require surgery. A sum of $1,130 is sought and ought to be allowed in respect of the revision of incisional hernia which would cost $11,300 and discounted by 90 per cent to $1,130.
  13. [103]
    As stated in paragraph 57 above Mr Spencer faces significant health risks due to his splenectomy. Future general practitioner expenses ought to be allowed notwithstanding Mr Spencer’s reluctance to attend his general practitioner. It seems through Mr Spencer’s lack of attendance at the general practitioner that he does not at all understand Dr Miller’s opinion that “The mortality from overwhelming post-splenectomy infection is between 38 and 70 per cent despite treatment. Patients who have had splenectomy had 2.5 increased risk of infection than normal patients”. It is for these reasons that Dr Miller has opined that Mr Spencer received immunisation and antibiotic therapy for the rest of his life. The calculated claim for future antibiotics is $9,940 which is $50 per month for 34 years to age 85. In addition vaccine treatment totalling almost $1,000 is sought and future attendances upon a general practitioner one consultation every two months for the next 34 years. It seems to me that it is reasonable to allow approximately one half of the claimed sums balancing the strong medical evidence that such treatment ought to be undertaken with Mr Spencer’s obvious lack of attendance upon a general practitioner for any treatment and perhaps his failure to understand the full ramifications of his splenetic injury.
  14. [104]
    A claim is made for future occupational related expenses of some $3,300. I will not allow it as evidence shows despite numerous job applications Mr Spencer has been unsuccessful in obtaining employment. Mr Spencer is limited by his geographical location the performance of manual work and the injuries that Mr Spencer has sustained, in my view, rob him completely of his ability to undertake manual work.
  15. [105]
    I assess Mr Spencer’s award along the following lines:

General damages ISV 24

ISV 24

$42,500.00

Past economic loss

 

$203,948.02

Interest $203, 948 less $91,538.08 (net WorkCover payments) x 1.16% x 6.1 years

 

$7,954.13

Past loss of employer’s contribution to superannuation at 9.25% (agreed rate)

 

$18,865.00

Future economic loss

 

$254,684.22

Future loss of employer’s contribution to superannuation at 11%

 

$28,015.00

Future paid care

 

$10,000.00

Fox v Wood

 

$14,457.00

Special damages (agreed)

 

$19,936.62

Interest (agreed)

 

$253.00

Future knee treatment

 

$7,000.00

Future shoulder treatment

 

$20,000.00

Future physiotherapy

 

$1,000.00

Future hospitalisation admission for small bowel obstruction

 

$385.00

Future Revision of incisional hernia

$11,300.00 discounted by 90%

$1,130.00

Future general practitioner visits, vaccine treatment and antibiotics

 

$9,000.00

TOTAL

 

$639,127.99

Footnotes

[1]  T2-8/28

[2]  T1-29/34.

[3]  T1-26/15.

[4]  T1-81/43, T2-8/7.

[5]  Ex 14 p 5, T1-4/1-2, T1-90/10.

[6]  T2-9/31

[7]  T1-63

[8]  T1-24/29.

[9]  T1-24/18-20.

[10]Berwick v Clark & Anor [2018] QSC 116 at para 130.

[11]  T1-32/5-10.

[12]  T1-32/35.

[13]  T1-33/10-15.

[14]  T1-32/1-5.

[15]  T1-58/26.

[16]  T1-59/38-39.

[17]  Ex 14.

[18]  T1-58/28.

[19]  T1-9 l 40 to T1-10 l 20.

[20]  Ex 14 p 2.

[21]  Ex 14 p 6.

[22]  Ex 14 p 6.

[23]  Ex 14 p 10.

[24]  Ex 14.

[25]  T1-86/30.

[26]  T1-81/43.

[27]  T1-9/5 and T1-82/7.

[28]  T1-86/14-15.

[29]  Ex 14.

[30]  T1-85 – T1-86.

[31]  T1-86/4-5.

[32]  T1-10.

[33]  T2-7.

[34]  Particularly at T2-8 to T2-9.

[35]  T2-8/13-14.

[36]  T2-9/1.

[37]  T2-9/30-45.

[38]  T2-17/42.

[39]  T2-17/20-25.

[40]  T2-17/44-45

[41]  T2-22/19-21.

[42]  T2-22/42.

[43]  Ex 14.

[44]  T1-81/20.

[45]  T1-80 - T1-81.

[46]  T2-22/20.

[47]  T2-22/35.

[48]  T2-24 - T2-25.

[49]  T2-24/17.

[50]Smith v Randall and anor [2016] QSC 191, per Applegarth J at [32].

[51]  T1-10/15-22.

[52]  Ex 14.

[53]  Ex 3 p 226.

[54]  T1-40/6.

[55]  See Ex 3 Item 3 and T1-40/41 - T1-41/3.

[56]  T1-40/25-29.

[57]  T1-41/42-43.

[58]  Ex 3 Item 5.

[59]  Ex 3 Item 8.

[60]  Ex 3 Item 9.

[61]  Ex 3 pages 222 to 227 and 224 to 226

[62]  Ex 3 p 224.

[63]  Ex 1.

[64]  Ex 1 para 38.

[65]Hopkins v WorkCover [2004] QCA 155.

[66]  T1-102-T1-103/10.

[67]  [1953] SC 34, applied and explained in Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 by Heydon J at para 93.

[68]  (1960) 108 CLR 158

[69]  (1965) 114 CLR 164

[70]  T1-102/43 - T1-103/11.

[71]  [2013] QCA 270.

[72]  (1981) 148 CLR 438.

Close

Editorial Notes

  • Published Case Name:

    Spencer v Downie and Anor

  • Shortened Case Name:

    Spencer v Downie

  • MNC:

    [2019] QSC 98

  • Court:

    QSC

  • Judge(s):

    Crow J

  • Date:

    12 Apr 2019

Litigation History

Event Citation or File Date Notes
Primary Judgment [2019] QSC 98 12 Apr 2019 Judgment for the Plaintiff in his claim for negligence against the Second Defendant in the amount of $639,127.99: Davis J.

Appeal Status

No Status