- Unreported Judgment
SUPREME COURT OF QUEENSLAND
11 May 2011
11 April 2011
I give judgment for the plaintiff against the second defendant in the sum of $162,750.00.
DAMAGES – Measure and remoteness of damages in actions for tort – remoteness and causation – pre-accident condition of plaintiff
Mr J. Miles for the plaintiff
Mr A. Moon for the second defendant
Roati & Firth Lawyers for the plaintiff
Jensen McConaghy for the second defendant
 The plaintiff by a Writ of Summons issued proceedings against the first and second defendants on 8 April 1998 claiming damages for personal injuries said to have been sustained by him on the early evening of 21 November 1996.
 In the proceedings he alleged that the driver of the vehicle in which he was a passenger was the first defendant.
 Subsequently the third defendant was added as a party upon the basis that he was the driver. The matter proceeded on the basis accepted by all parties that the third defendant was the driver.
 No acceptable explanation appeared as to why this matter has taken 13 years to come to trial.
 Counsel who appeared on behalf of the second defendant admitted negligence on the part of the driver of the van. There are issues of contributory negligence to be determined. It is alleged that the plaintiff failed to wear a seatbelt and there is also an allegation that the third defendant was, to the knowledge of the plaintiff, adversely affected by alcohol when the plaintiff entered the vehicle and that the plaintiff in doing so failed to take reasonable care for his own safety.
 In his account, the plaintiff claimed that he had gone to Ingham on the day of the accident for the purposes of doing shopping. He lived on a small property west of Ingham on the Stone River Road.
 The plaintiff says that in the afternoon after he had completed his shopping, he was waiting for a taxi when he was approached by a woman who he had met before and who was then in a relationship with the first defendant and offered a lift home with the third defendant in the third defendant's vehicle. He says that he did not know the first defendant at that time.
 He accepted and the van was driven by the third defendant with the first defendant and his girlfriend as the other passengers to Trebonne, a small town to the west of Ingham. Two of the third defendant's sons were at the hotel. One was a teenager and the other younger. The plaintiff says that there was some exchange between the third defendant and his sons in which the third defendant told one of them to leave and go home immediately whilst the other ultimately travelled home in the van with them.
 According to the plaintiff, those in the vehicle decided to go into the hotel where they stayed for a brief time during which the plaintiff had one drink as did the first defendant before they commenced on their journey home.
 It is the plaintiff's account that he did not take any particular notice of who had entered the driver's compartment. He was in the passenger side front seat and others were seated behind him. He said that two other persons who were adversely affected by alcohol entered the vehicle also but his is the only evidence of such other persons being in the vehicle.
 According to the plaintiff he was sitting in the passenger side front seat and was faced with the setting sun shining in his face. He was looking out to the left where the sugar cane had been harvested.
 The accident happened when the vehicle came up behind the son of the third defendant who was riding his bike back home. As the vehicle got closer to the bike, the bike was ridden from its position on the left hand side of the bitumen road in accordance with the vehicle's line of travel across to the right. The vehicle swerved presumably to go around the bike and the bike moved back towards its original position before again swerving to the right. The vehicle swerved so violently that it overturned and finished on its roof.
 The plaintiff says that whilst he was at the scene he heard the first defendant inform the police that he was the driver and he thereafter proceeded on that basis himself instituting proceedings against the first defendant.
 The first defendant gave a quite different account. He said that he had been in Ingham with his girlfriend and that they had arrived at the Trebonne Hotel in the afternoon. He does not recall how he got there or in whose vehicle he had travelled but says that it was not the van driven by the third defendant.
 He says that when he arrived at the hotel he saw the plaintiff and the third defendant who were both obviously affected by alcohol. He was there for about an hour and a half before they all left in the van, it apparently having been agreed by this time that they would go to the third defendant's property on Stone River Road and have a barbeque.
 Notwithstanding that he thought that the third defendant was not capable of driving a vehicle safely, he entered the vehicle having no other form of transport.
 After the accident he says that his then girlfriend persuaded him to inform the police that he was the driver. He said that she told him that if the third defendant was driving the vehicle in the condition he was in, there was a risk he might lose his children.
 After proceedings were instituted he was approached by a loss assessor and initially gave the account that he had given the police of being the driver. However he was apparently warned of the consequences of maintaining a false account and eventually gave the account which I have just outlined.
 The investigating police officer gave evidence of coming to the scene. He had a conversation with the first defendant in which he claimed to have been the driver. He said that some of the people at the scene who had been in the vehicle appeared to be affected by alcohol.
 I am satisfied the account given by the first defendant is correct. I reject the claim that the plaintiff did not know who was driving the vehicle between Trebonne and the point at which the accident occurred, a distance of some five kilometres.
 This does not affect the question of liability but is of some significance in relation to the acceptability of the evidence generally given by the plaintiff. It is not the only reason however why there is cause to treat what he says with some degree of reserve.
 The claim that the plaintiff failed to wear a seatbelt is largely based upon a statement he is said to have made at the Ingham Hospital (where he was taken following the accident) that he was thrown through the windscreen of the vehicle.
 The plaintiff denies that he was not wearing a seatbelt and says that after the accident he was caught in the seat belt within the upturned vehicle.
 Photographs (exhibit 1) taken at the scene show the windscreen to be intact.
 Whilst as I have said there is good reason to doubt what the plaintiff says in a number of respects, I am not satisfied that it has been shown that the plaintiff failed to wear a seatbelt.
 I am satisfied that the third defendant was adversely affected by alcohol at the time and that the plaintiff was aware of this, having been drinking with him. I am satisfied that the plaintiff failed to take reasonable care for his own safety in travelling as a passenger in the vehicle in the circumstances. The first defendants description of the third defendants demeanour at the hotel was such that his intoxication would have been readily apparent.
 There is no evidence which would permit a precise assessment of the level of the third defendant's intoxication and it also has to be borne in mind that the relevant events occurred in a rural area where there was unlikely to have been readily available alternative means of transport. The vehicle as I have said travelled five kilometres before coming to grief.
 In all of the circumstances I think an appropriate reduction for the plaintiff's contributory negligence would be some 20%.
 I now turn to the plaintiff's pre-accident history.
 The plaintiff was born on 21 March 1955.
 He left school in 1971 at age 15.
 He joined the Army and served for some three years and after working for a few months in a couple of unskilled jobs, commenced in 1976 to conduct a sandblaster/waterblaster business at Forster/Tuncurry. He later moved to Mackay performing the same work as a self-employed person.
 In 1984 the plaintiff sustained injuries in an accident in Central Queensland. He was at this time, according to his evidence, working on a shutdown at Goonyella Mine. In the accident the plaintiff fell from his motorcycle.
 In that accident he sustained compression fractures in the thoracic spine. He was away from work for something like two and a half years.
 The plaintiff did not tell any of the doctors who have examined him on either his own behalf or on behalf of the defendant about this accident or the injuries he sustained. In the accident, the subject of these proceedings, the plaintiff claims to have suffered injuries to the cervical spine, the thoracic spine and his left shoulder, as well as an injury to the lumbar spine.
 When asked about this in cross-examination, he said that he had forgotten about it or he had put it out of his mind.
 Given the lengthy period he was off work following this accident, it is difficult to accept that explanation.
 Each of the specialists had been informed of this history prior to trial and the evidence which was given by them was given in the knowledge of that accident and the fractured vertebrae and the opinions expressed took those matters into account.
 In 1993 the plaintiff sustained a serious injury to his right hand when he was the victim of an attempted robbery in Townsville. He was standing at an ATM when he was assaulted. This injury which required surgery on his hand which was performed in Sydney and another accident on 19 December 1995, when he slipped on a cane toad on the steps to his house and sustained an injury to his right wrist, kept him out of the workforce. He was not working at the time of this accident.
 It is the plaintiff's case that he was about to re-enter the workforce and that this accident has prevented him doing so.
 The plaintiff says that between 1988 and 1993 when he sustained the injury to his right hand, he was working as a sandblaster and waterblaster on his own account in Forster/Tuncurry and Mackay.
 The evidence which supports this and the amounts which the plaintiff claims as a result of his alleged incapacity to engage in this work is far from satisfactory.
 The plaintiff tendered a number of documents of varying kinds which I think clearly enough justifies the conclusion that he was self-employed as a sandblaster/ waterblaster during this period. The documents include invoices from suppliers, an application for a licence, an advertisement in a newspaper and the like. There is only one tax return which is in evidence. The records of the Australian Tax Office show that in respect of a period for which records would be available from the Tax Office, the plaintiff did not lodge tax returns.
 Exhibit 35 consists of some four statutory declarations. Two are from persons for whom the plaintiff did some work, one is from a former employee and one from someone who did mechanical work on his vehicle. All live in the Forster/Tuncurry area.
 The tax return (exhibit 28) for the year 1991 is somewhat confusing but it includes an assessment of taxable income of a little under $7,000.
 Whilst it can be accepted that the plaintiff carried out this work during this period, and appears to have had no other source of income to maintain himself, it is quite impossible to form any conclusions as to the level of income which he might have generated during this time.
 Where a claimant for personal injuries does not keep records or submit tax returns, it is I think inevitable that any assessment of damages must be approached cautiously. For reasons I have already mentioned, I would be reluctant to act on the plaintiff's claim about the income which he says that he made. Ultimately the average weekly earnings statistics were relied upon but given the contents of the tax return that is before the Court, it would not in my view be a reasonable course to take to adopt that figure.
 Following the accident, the subject of these proceedings, the plaintiff was taken to the Ingham Hospital where he was admitted overnight. On 2 December 1996, he attended his local general practitioner. He complained of pain in the cervical and thoracic spine and also in the lumbar spine. He also suffered pain in the left shoulder and experienced numbness in the left hand as well as headaches.
 When he was examined on 2 December 1996, he was found to have a decreased range of movement to his spine and tenderness. The compression fractures were then discovered and at that time it was thought they were attributable to this accident.
 The symptoms in the spine and the shoulder with radiation into the left arm and hand as well as the headaches have continued and he is now in receipt of a disability support pension.
 His condition is chronic.
 Medical reports to WorkCover Queensland (contained in exhibit 38) during the period that he was on workers' compensation and subsequently at or towards the end of this period, expressed the opinion that the plaintiff was, as a result of the disability sustained in the 1984 accident, permanently unfit for work involving heavy physical labour. The terms in which these opinions were expressed were quite pessimistic.
 Notwithstanding this, the evidence to which I have referred satisfies me that the plaintiff did return to the activity of sandblasting and waterblasting. He employed others and it may be accepted that he did not engage in all aspects of the job but I accept that he was able between himself and those he engaged to carry on this activity.
 It is the plaintiff's case that at the time he was injured in 1996 he was about to re-enter the workforce but was prevented from doing so by the disabilities he was left with following this accident. His evidence was that he had the necessary equipment to re-engage in the activity of sandblasting and waterblasting and had done the necessary repairs and generally put the equipment in a state of readiness.
 Before me Dr Pentis and Dr Fraser, orthopaedic surgeons, and Dr Campbell and Dr Cameron, neurologists gave evidence. Dr Pentis and Dr Cambpell were called on behalf of the plaintiff, whilst the other specialists were called on behalf of the defendant. There is a considerable divergence in the views of these specialists.
 As I have said, the plaintiff did not inform the specialists when they saw him of the 1984 accident. The first time it appeared in any document prepared for these proceedings was in the quantum statement which is exhibit 2.
 Prior to its disclosure, the specialists had assumed that the fractures were the result of this accident.
 Dr Cameron expressed the view that the plaintiff had suffered some soft tissue injuries to his face and left shoulder in the accident and may have suffered a cervical upper back region muscular ligamentous strain injury. He does not have any impairment of the spine and no specific features of neuropathy in the left arm or cervical nerve root impairment could be detected.
 His view is that the plaintiff ought to have been able to return to full time remunerative employment within months of the accident and that he does not suffer from any disability arising therefrom.
 Dr Fraser had in his initial reports assessed the plaintiff as having a 9% impairment of function of the whole person as a consequence of injury to the cervical and thoracic spines but thought that he had not been left with any disability in the left shoulder.
 Following the disclosure of the 1984 accident and the injuries sustained in it, he expressed the view that the plaintiff's condition is wholly attributable to the 1984 accident and that the injuries sustained in the 1996 accident have not given rise to any additional incapacity to work or any further quantifiable impairment of bodily function.
 Dr Pentis' view when he first saw the plaintiff was that he had an incapacity of some 15% of the whole person due to the soft tissue injuries he had sustained with restricted range of movement and the fractures to the thoracic spine which at that time were understood as being related to the 1996 accident.
 Subsequently he altered this assessment expressing the view that the plaintiff has an overall disability of some 12% of the body of which some 5% is attributable to the 1996 accident.
 In a statement (exhibit 6(a)) Dr Pentis expressed the view that the plaintiff was capable of returning to work at the time of his accident in 1996. He had earlier expressed the view that any work would be light duty work or work in which he was self employed because of his multiple spinal problems. The effects of the accident in Dr Pentis' view "tipped him over the edge" as far as employment is concerned.
 In his evidence Dr Pentis under cross-examination, expressed the view that the injury which the plaintiff had sustained in 1984 to his thoracic spine would have been likely to have deteriorated as time went on and that a time would have been reached when he would not have been capable of carrying out heavy work. When asked to nominate that age, he said that by the mid-50s people with such a disability should change to something lighter, even if they are still at that time coping with the heavy work "because you're going to keep paying for it, as I said, in the long term".
 Dr Campbell considered that the plaintiff had sustained soft tissue injury to the spine and soft tissue muscular ligamentous injury to the cervical and thoracic spines which had left him with a disability of some 15% of the whole person.
 In an addendum statement (exhibit 7) he expressed the view that the plaintiff’s prospects of re-entering the workforce are poor. He apportions the cause of his current spinal disabilities equally between his pre-1996 condition and this accident.
 The plaintiff gave evidence of suffering from migraine headaches from the time of the accident for some six or seven years which prevented him from reading because of what he described as zigzag lines appearing before his eyes. Each stopped at the same time. No claim is made in these proceedings relating to this although the plaintiff says that he told doctors about it and that no one seemed to take any interest in it. It is difficult to accept the claim at face value that he was constantly unable to read for such a lengthy period. As no claim is made in relation to it, I will ignore it for the purposes of assessing damages, there being no medical evidence which might provide assistance as to what impact it might have had upon the plaintiff's capacity to work.
 The plaintiff during the last 27 years has, for one reason or another, not worked for some 18 years. For the 12 years prior to the accident he worked only for some 3 years.
 In 1996 when injured, he had a disability of his dominant hand and a spinal condition which undoubtedly limited what he could do. The hand injury limited this capacity to perform certain work. I am satisfied the plaintiff has a disability of the spine and I accept that it is generally of the order which Drs Pentis and Campbell describe in their reports.
 The plaintiff thought that he could manage the equipment involved in sandblasting and waterblasting with his disabled hand, although he had told Helen Coles, an occupational therapist, that he would have difficulty with the heavier aspects of this work.
 The plaintiff is now at an age when he would be unlikely to re-enter the workforce, given his disabilities. He may have been in this position in any case either now or within a few years.
 Any assessment of damages must necessarily be approached cautiously given the unreliability of much of the plaintiff's evidence and his failure to make full disclosure. He has been out of the workforce for substantial periods of time.
 The plaintiff appears to be a knock-about type who has had a series of injuries. His failure to provide tax returns (and his unsatisfactory attempt to explain this by reference to his belief that PPS returns were sufficient) make it impossible to attempt any accurate assessment of his loss. This must be largely a matter of impression.
 I assess the plaintiff's general damages at $25,000. I allow interest at the rate of 2% on $15,000 for 5 years (which I think is a reasonable period instead of the wholly unexplained 14 years that has passed since the proceedings were instituted) producing a figure of $500.
 As far as past economic loss is concerned, there must be serious doubts about the extent to which the plaintiff would have earned any substantial income during this time, had he not been injured. I accept that it is likely that he would have at least for some period, sought to engage in the work of a sandblaster and waterblaster but the extent to which this may have generated an income for him given the paucity of the evidence as to the past is problematical. I allow a global figure of $40,000 in respect of past economic loss which will include an allowance for superannuation upon the basis that he may have been an employee rather than a contractor during at least some of this time. No interest is allowable given the amount received from the Department of Social Security.
 Future economic loss poses similar difficulties. I have already referred to the fact that the plaintiff may have reached or been coming to the time when quite apart from the impact of the injury sustained in this accident he would have been likely to have a limited working life ahead of him. Normal vicissitudes and contingencies have to be allowed for.
 I again allow a global sum of $30,000 for future economic loss.
 I turn now to special damages.
 The plaintiff deposes to having incurred some $7,519.35 for medical expenses. These are particularised but it is clear that they can not be wholly attributed to the defendant’s negligence given the plaintiff’s pre-existing problems. I allow $5,000 under this head.
 There is a large claim in the order of $17,941 for pharmaceutical expenses.
 Some significant discounting has to be allowed for the likelihood that the plaintiff would have required such medications and other pharmaceuticals in any case. Doing the best I can I allow $8,000 under this head.
 Rehabilitation expenses are sworn to in the amount of $3,740.55 but again some discounting has to be applied on the evidence. I allow the tens machine costs as being reasonable. I allow under this head $2250.
 There is a claim for travel expenses of $6,015 but these also have to be discounted for the risk that some of these would have had to be incurred in any case. The evidence in support of this is somewhat sparse but I allow $3,500.
 The total of these is $18,750. I allow interest on that sum at 5% for 5 years producing a figure of $4687.50.
 There are claims for care and assistance. These claims are based upon the report of Catherine Purse, an occupational therapist.
 The parties have agreed upon $18 per hour for past care and assistance and $23 per hour for future care and assistance.
 Miss Purse's assessment is that the plaintiff has a requirement of about 3 hours per week assistance and has had this need since the time of the accident.
 The effect of the plaintiff's evidence was that he was able to do all of the tasks associated with living in a caravan that he lives in at Millmerran and to look after himself. However, it seems that some of the these tasks would undoubtedly cause him pain and discomfort and I accept Miss Purse's assessment that it would be reasonable for him to have 3 hours per week of assistance for help with the tasks which he describes in her report. The effect of her evidence is that he tends to neglect some of these tasks and they go undone or he obtains help intermittently from neighbours and friends.
 Not all of this need can be ascribed to the consequence of this accident, given the previous accident in 1984 and its consequences and the impairment of his dominant hand. Significant discounting is necessary.
 Doing the best I can, I allow in respect of past care and assistance, the sum of $20,000 with interest at 5% for five years producing an amount of $5,000.
 In respect of the future, and on the same basis, I allow $25,000 for future care and assistance.
 There are significant claims for future expenses.
 There are claims for future medical expenses in the sum of $9,500. Some of this must be ascribable to his earlier disabilities and I allow $4500 under this head. Similarly there must be substantial discounts to the large sum ($68,000) claimed for future pharmaceutical expenses. I allow $20,000 under this head.
 There are also claims for future rehabilitation expenses and future travel. Some modest allowance I think is justified in respect of these two claims but it must necessarily be at a significantly lesser sum than that claimed.
 I would allow in respect of both of these heads $10,000.
 The total of these sums is $203,437.50
 80% of this sum is $162,750.00. I give judgment for the plaintiff against the second defendant in the sum of $162,750.00.
- Published Case Name:
Kelly v Glover & Australian Associated Motor Insurers & Smith
- Shortened Case Name:
Kelly v Glover
 QSC 114
11 May 2011
No Litigation History