McMaster v The Nominal Defendant (Queensland)
[1996] QDC 159
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- McMaster v The Nominal Defendant (Queensland)[1996] QDC 159
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McMaster v The Nominal Defendant (Queensland)[1996] QDC 159
McMaster v The Nominal Defendant (Queensland)[1996] QDC 159
IN THE DISTRICT COURT HELD AT BRISBANE IN THE STATE OF QUEENSLAND | Plaint No. 1338 of 1993 |
BETWEEN:
LEAH MARY McMASTER in the State of Queensland | Plaintiff |
AND:
THE NOMINAL DEFENDANT (QUEENSLAND) Level 18, 288 Edward Street, Brisbane in the State of Queensland | Defendant |
REASONS FOR JUDGMENT - O'SULLIVAN D.C.J.
Delivered the 18th day of July 1996
The Plaintiff was injured on 15 May 1986 while travelling along the Bruce Highway near Gympie late at night when her motor vehicle travelled onto the gravel alongside the highway, she lost control, and the vehicle crossed the highway and ended up down an embankment on the opposite side of the highway.
The Plaintiff says that in an endeavour to avoid an oncoming unidentified motor vehicle she moved her vehicle onto the left gravel shoulder of the highway.
The central issue at the trial was whether the Plaintiff's recollection of the accident was reliable, and whether she had discharged her onus of proving on the balance of probabilities that the accident was caused by the negligence of the driver of the unidentified vehicle.
Counsel for the Nominal Defendant asked me to find that she had not discharged her onus of proving the presence of an unidentified vehicle but, if I found that she had, in any event she had not discharged her onus of proving that the driver was negligent and that that negligence caused her injuries.
At the trial the only evidence concerning the negligence of the unidentified driver was the Plaintiff's own evidence. In a case where the only evidence is that of the Plaintiff, the ordinary civil standard of proof (balance of probabilities) still applies, but I must adopt a more cautious approach to the determination of the issues than I would in other cases, because I do not have the benefit of the story of the person whose conduct is under attack. This is especially so when there is also no objective indicia to support the allegation of the presence of another vehicle.
Counsel referred me to a number of relevant authorities, as follows:—
Eaton v Nominal Defendant 21 M.V.R. 357
Freeman v Griffiths (1976) 13 S.A.S.R. 494
Hofer v Miller (1957) S.A.S.R. 41
Westlake v Motor Vehicle Insurance Trust (1960) W.A.R. 83
Blum v Motor Vehicle Insurance Trust (1966) W.A.R. 121
Cardile v The Nominal Defendant (Q) (Unreported, W.B. Campbell J., No. 1401 of 1973)
McAlphine v The Nominal Defendant (Q) (Unreported, Andrews J., 20 June 1980)
Wuertz v The Nominal Defendant (Unreported, Demack J., 26 August 1994)
Agius v The Nominal Defendant (Unreported, Williams J., 30 March 1995)
Lazurko v The Nominal Defendant (Unreported, Byrne J, 7 September 1993)
I have perused these authorities, and I consider that the decision in each of those cases depended in the final analysis on its own facts as found by the trial judges. However, I agree that they stress that I must approach the Plaintiff's evidence with some care and scrutinize it carefully, paying regard to inconsistencies and variations in her account.
This decision has been made much more difficult by the extremely poor quality of the police investigative work. The interviews conducted by Sergeant Sykes and Constable (now Sergeant) Holmes fell far short of competent. Sergeant Sykes is now deceased, and thus his police notebook entry and two subsequent statements have not been tested in cross-examination. They are sketchy and potentially misleading because it is not clear what questions were asked of the plaintiff. Constable Holmes prepared an extraordinary number of reports. The inadequacy of them, individually and collectively, became plain after he was cross-examined at the trial.
I find the police notebook entry and statements of Sergeant Sykes, and the reports of Constable Holmes, to be unreliable. Unfortunately, they were relied on, in part, by Doctors Cameron and Weidmann.
I have scrutinized the Plaintiff's evidence with particular care.
Counsel for the Nominal Defendant quite properly drew to my attention the fact that the presence of another vehicle was not mentioned to any doctor or nurse at Gympie Hospital, any doctor or nurse at Princess Alexandra Hospital, an ambulance person, Sergeant Sykes, or Dr Landy. So far as doctors, nurses and ambulance persons are concerned, I consider that the Plaintiff's omission to mention another vehicle is not fatal to her credit. The reality is that at the appropriate time, she should have been interviewed properly by police officers about all the circumstances of the accident (including the presence of another vehicle), and it is not reasonable to say that because she did not volunteer this information to doctors, nurses and ambulance persons that her credit is thereby adversely affected. I agree with Counsel for the Plaintiff that if the police officers had asked the detailed and non-leading questions that ultimately were asked in the extraordinary number of subsequent reports and investigations and during the course of this litigation and at this trial, reliable and more contemporaneous statements would have emerged. What has happened is that no adequate contemporaneous statements were taken, and there have been attempts over a period of ten years to remedy this.
So far as not mentioning another vehicle to Sergeant Sykes is concerned, it is unclear whether she did or whether she did not. His notes are so sketchy and unimpressive that it cannot be safely asserted (as Counsel for the Nominal Defendant invited me to do) that had another vehicle been mentioned, Sergeant Sykes would have noted it. That may or may not be so; certainly the sketchy nature of his police notebook entry and the subsequent reports give no cause for confidence. It cannot be assumed that another vehicle was not mentioned. It is not possible to say what matters were canvassed or what questions were asked (or not asked). In any event, at the time of the Sykes interview it was only eight days after the accident and the plaintiff was still receiving intensive medical treatment and was in a traumatic hospital situation and any failure to volunteer information must be placed in this context.
The Plaintiff gave a Statement to Constable Homes on 16 July 1986, and in this she mentioned another vehicle travelling in the opposite direction coming towards her with its lights on high beam which blinded her. The Statement records that she said she swerved and lost control. The Statement does not mention that the other vehicle was on the wrong side of the road. The plaintiff was asked about this omission in cross-examination, and she replied: “Yes, well, just the lights were there. The lights seemed to be the main thing that people were worried about”. Counsel for the Nominal Defendant asked me to give weight to this answer, suggesting that it highlights the fact that her recollection is contaminated by what other people have told her. I do not consider that it is of such weight as to be fatal to the Plaintiff's credit. As I have already indicated, I consider that the Statement of 16 July 1986 is unreliable. Many inaccuracies emerged during cross-examination. One example (of many) is the statement says that “she was in the presence of her boyfriend at the time, one Rowan Knoff”. In a subsequent statement Constable Holmes says that Rowan Knoff was not a passenger in the vehicle at the time of the accident.
In his report dated 18 March 1996, Dr Landy includes the following: “....As she approached where the accident occurred she knows there were cars coming the other way. The last thing she remembers are lights in front of her ‘like a whole sting of lights’. She moved over onto the gravel and then she said she ‘knew something terrible was going wrong’. She remembers bits and pieces after that and she states it was 7-8 hours before they found her”. Counsel for the Nominal Defendant asked me to attach importance to the statements about “whole sting of lights” and “cars coming the other way”, and that they an inconsistent with her other evidence. I am prepared to do this, but with the reservation that accounts given to doctors are given in the context of the current medical examination, which is quite different from formal interviews and statements taken by police officers. It would be worrying if patients became nervous about what they said to their doctors because of possible legal implications. I am not prepared to accept that doctors are always reliable notetakers because their notes are made from the standpoint of their importance and relevance to medical treatment, not their legal implications. I do not consider that the omission of a reference to Dr Landy of another vehicle being on the wrong side of the road is fatal to the Plaintiff's credit.
In assessing the Plaintiff's credit, I have given considerable thought to the matters raised by Counsel for the Nominal Defendant. These matters included the evidence of Michelle and Christopher Dodt that the Plaintiff said to them at the Gympie Show: “God I'm pissed”. In view of the evidence of the other witnesses about the absence of alcohol consumption, I find that they either misheard or misconstrued what was said by the Plaintiff.
Counsel for the Nominal Defendant drew my attention to inconsistencies between the various statements of the Plaintiff, her Answers to Interrogatories, and her evidence at trial. They included differences in her recall of various matters including whether she braked, whether she moved off the road to avoid the vehicle, the distance from the other vehicle, and whether she decreased her speed. I consider that these are inconsistencies, but I do not consider them of such significance that they seriously affect her credit. In reaching this assessment, I consider it relevant that the motor vehicle accident occurred ten years ago and that the statements and Answers to Interrogatories were at different times from the date of trial, some ten years after the accident. I agree with the submission of Counsel for the Plaintiff that the broad brush of the Plaintiff's evidence has not changed. I also agree with him that (unlike many of the authorities to which I have already referred) there is no other evidence which discredits the Plaintiff's evidence. At trial I assessed the Plaintiff as a person who was honest and genuine. She was cross-examined at length and in considerable detail.
Counsel for the Nominal Defendant drew my attention to the unsatisfactory nature of the evidence given by the Plaintiff at trial concerning whether the other vehicle was on the incorrect side of the road, and whether its lights were on high beam. He referred to various passages of evidence, including the following:—
“Do you agree that even back then you weren't sure whether it, in fact, was on the wrong side of the roadway?-- Well, what I was trying to convey was that to me, yes, they were, but that's not to say he definitely was. That's where he appeared to be.
Yes, he may well not have been?-- Yeah, I guess so.”
..........
“What were the lights like?-- They were bright.
Could you form a view as to whether or not they were on low beam or high beam?-- I would say they were high.
Why do you say that?-- They appeared to be - they were just very bright. If they were low beam they were very bright low beam lights.”
Counsel for the Nominal Defendant also invited me to read the Answers to Interrogatories, and in particular where the Plaintiff talks about the other vehicle “appearing” to be on the wrong side of the roadway and “seeming to be partially on my side” and so on.
Answer to Interrogatory 25(a):—
“I remember most of what I did in the period of 12 hours prior to the accident but there are fragments which I cannot place or picture. I do recall seeing headlights coming towards me on my side of the roadway and my vehicle running off the road and this was the last thing I remember.”
Answer to Interrogatory 33:—
- (b)“By reference to the centre line or imaginary centre line of the Bruce Highway, the unidentified motor vehicle was at the time it was first seen by me positioned with its lights hitting full on the vehicle driven by me and appearing to be partially on the wrong side of the road (i.e. my side of the road) coming towards me”.
- (g)“The closer I got to the unidentified vehicle the more the unidentified vehicle seemed to be on the wrong side of the road to the effect that form a far greater distance it could have appeared to be on the correct side of the road however as it approached it seemed to be on my or partially on my side of the road”.
- (h)“At the time the lights of the unidentified vehicle hit me the unidentified vehicle appeared to be partially on the wrong side of the road.”
Counsel asked the Plaintiff about Answer (h), as follows:—.
“Mr Lane: Do you agree that even back then you weren't sure whether it, in fact, was on the wrong side of the roadway?
Plaintiff: Well, what I was trying to convey was that to me, yes, they were, but that's not to say he definitely was. That's where he appeared to be.
Mr Lane: Yes, he may well not have been?
Plaintiff: Yeah, I guess so.
Answer to Interrogatory 33:—
- (a)“From the time it was first seen by me until the time I moved the vehicle onto the gravel shoulder of the Bruce Highway the unidentified motor vehicle appeared to move laterally on the roadway in that it seemed to come gradually closer towards the centre of the road.”
During cross-examination the Plaintiff was asked about the headlights of the other vehicle:—
“Mr Lane: | How far approximately would they be (over the centre line)? |
Plaintiff: | They appeared to be just, I guess, a fair way over, yes. |
Mr Lane: | “Appeared to be a fair way over”, what do you mean by that? |
Plaintiff: | Well I can't say exactly whether he was this far over the line or that far over the line - to me he was on my side of the road”. |
I have considered the Plaintiff's evidence at trial and the Answers to Interrogatories and whilst there is some equivocal language which may cause some concern, overall I consider that the evidence is sufficient to support the proposition that the other vehicle was at or near or indeed over the centre line which when combined with the lights being either on high beam or very bright, led the Plaintiff to apprehend danger and to move her vehicle to the left.
Counsel for the Nominal Defendant submitted as significant the Plaintiff's initial lack of recollection, her failure to remember the Sykes interview, then her subsequent recollection two months after the accident and when answering Interrogatories and then her failure to recall some of those same matters at trial. She said that when she “actually put everything together” was “in the latter stages of the hospital when things were starting to move along a bit better”.
The main focus of the Nominal Defendant was to render the Plaintiff's version of the accident unreliable by reference to medical evidence, especially to Dr Cameron.
A large part of the trial centred on the issue raised by the Nominal Defendant, namely, whether the Plaintiff's memory recall fits the normal pattern associated with shrinking of amnesia. Doctors Cameron and Weidmann wrote reports and gave oral evidence opining that it did not. Doctor Cameron's opinion was: “I think it's very unlikely that there's any factual basis for it (her recall)”. Doctor Weidmann opined: “On the balance of probabilities, I would have great difficulty accepting that Ms McMaster has genuinely experienced such an alteration in the length of her retrograde amnesia”.
Doctors Cameron and Weidmann relied on two particular sources of information. The first was a notation in the Gympie Hospital records at 7.00 a.m.:— “Conscious. Answers questions but not orientated for time, place or accident”. Sister Walton who made this notation was called at the trial but was unable to recall her notation or the Plaintiff. The second source are notations in the P.A. Hospital records on 17 May at 9.30 p.m.:— “Conscious. Obeying commands. Cannot remember accident”; And on 19 May:— “Retrograde Amnesia 7 hours. Antergrade Amnesia to 8 a.m.” Sister Currie was called to give evidence at trial, but could not elaborate on the consciousness and accident recollection of the Plaintiff.
Doctor Cameron reached a view about the extent of the retrograde amnesia based on the Gympie Hospital note and the statement to Sergeant Sykes. He described it as a very significant head injury which he put in a moderate category. He said that the probability of her recalling events leading up to the accident was: “small, very small”. He said that mere would be no recollection for a couple of minutes and that her “very vivid recall” was “very unusual”. He relied on periods of amnesia and unconsciousness in arriving at his opinion as to the quality of the Plaintiff's recall. I consider that it is not possible horn the evidence to say for what period of time the Plaintiff was unconscious, nor what was the period of retrograde amnesia. It could be as little as 10-15 minutes, being the travelling distance from the Show to the accident. It could have been anywhere between that and the seven hours on which Dr Cameron bases his opinion but the latter would involve acceptance of very cursory notations made by hospital staff and reliance on the statement in the police notebook of Sergeant Sykes. For the reasons I have already outlined, I consider that the former ought to be limited to the context in which they were taken, and the latter is unreliable.
Counsel for the Nominal Defendant submitted it is “particularly significant” that the Plaintiff was able to give a range of details to Sergeant Sykes such as registration number and type of car. The police notebook entry is not only sketchy, but it is impossible to say what questions were asked and how the details were in fact provided by the Plaintiff.
Doctor Cameron considered that the Plaintiff's recall was contaminated because she was relying on what others had told her. He based this on the hospital notations and the police notebook entry. I consider that he gave too little weight to the context of the former and the inadequacy of the latter.
In making this comment, I ought to make it plain that the question whether the Plaintiff's recall has been affected by what others have told her is of course a relevant matter and one to which I have given considerable thought. However, I consider that in approaching the same question, Dr Cameron gave too much weight to unreliable material. Perhaps the nub of the problem is encapsulated in the following passage of evidence:—
“You place much store in this comment (retrograde amnesia of 7 hours) contained in a hospital note that there's retrograde amnesia for 7 hours?--Mmm.
“Is that correct?-- Well, that's all I have got to go on. That's all we have got to go on.
My question is, you place great store on this assessment?— It's one of the aspects of it. There are other articles mentioned further on to the police officer; she still has an amnesic period. To nursing sister. This pattern is through the early stages of her injury.
Well, we don't have the benefit of the doctor who made that examination nor do we know how he achieved that assessment, but we know that it's some 7 hours between the time she was injured and the time she was found?—Mmm.”
The doctor who made the hospital note was not available to give evidence at the trial.
Doctor Weidmann gave evidence that the Plaintiff had a moderate head injury and that the 1-2 seconds preceding the impart are permanently lost. He also agreed that he relied on the statement of Sergeant Sykes and, indeed, went so far as to say: “I would still accept that what he documented to be a very accurate documentation of the event on that day”. I totally disagree with this statement. Doctor Weidmann conceded that it is sometimes quite difficult in determining when post-traumatic amnesia ceased, to dissect what is drug related and what is trauma related.
Doctor Landy agrees with Dr Weidmann that the last couple of seconds an lost, although he does say that in his experience some patients can recall even the impact. Doctor Landy relied on what he has been told by many patients who he said told him they can recollect up to immediately before the injury. He noted that the Plaintiff recalled some things in the seven hour period but she did not recall the last few seconds, when the car went over. He described her recall as “reasonably likely”. He said that when the Plaintiff gave her history to him, it did not raise any doubts in his mind.
I find that the Plaintiff's recall is consistent with Dr Landy's evidence. In her statement to Constable Holmes on 16 May 1986, it is noted the Plaintiff said she does not recall going over the embankment.
Doctor Landy and Dr Weidmann agree so far as the couple of seconds is concerned and on this aspect I prefer their evidence to that of Dr Cameron who refers to “the couple of minutes before leading up to an accident of this nature”. I consider that the differences may be due to Dr Cameron's opinion that it was a very significant head injury and also the weight he placed on the seven hour period of retrograde amnesia.
I accept the Plaintiff's testimony. I find that her vehicle was approached by a vehicle with its lights on high beam or very bright; that vehicle was on the plaintiff's side of the highway; the plaintiff moved her vehicle off the bitumen surface and on to the gravel verge to the left and as she attempted to move her vehicle back on to the bitumen surface she lost control of the vehicle, crossed the highway and overturned on the opposite side. I find it more probable than not that the accident was caused by the negligence of the driver of an unidentified motor vehicle.
It is possible that the Plaintiff over-corrected after going onto the gravel but she was in a situation which was due to the other driver's negligence.
The Plaintiff admitted that she was not wearing a seat belt at the time of the accident. At the trial evidence was called by both parties about whether this failure worsened her injuries. I prefer the evidence called by the Nominal Defendant. I find that had the Plaintiff been wearing a seat belt, she would not have suffered injuries of such severity. Counsel for the Plaintiff submitted that an apportionment of 15 per cent is appropriate. Counsel for the Nominal Defendant submitted a figure of 25 per cent. I was referred to the following authorities:
Bull v. Batten 5 M.V.R. 341
Eagles v. Orth (1975) Qd.R. 197
Froom v. Butcher (1976) 1 Q.B. 286
Hallowell v. The Nominal Defendant (Qld) (1983) 2 Qd.R. 265
Apportionment depends on the extent to which the Plaintiff had departed from the duty of care which she owed to herself to take care for her own safety and the extent to which the driver of the unidentified vehicle had departed from the standard of care which he owed to the Plaintiff, “The appropriate balancing process necessarily involved a consideration of all of the circumstances of the case”: Bull v. Batten (supra), at p. 344. As the Full Court said in Bull:
“In other cases trial courts have found a particular percentage reduction to be appropriate, but this court has insisted that each case will depend on its own facts and circumstances for the determination of the question as to what is an appropriate apportionment.”
The Plaintiff was driving on an unlit highway, albeit a familiar one, late at night at “around 100 kilometres” per hour. She was travelling from the Gympie Show to her home. She had driven 15 kilometres from the Gympie Showgrounds. She said she was in the habit of not wearing seatbelts because she did not like mem: “Mum had always said, ‘You could get trapped in a car’.”
I apportion contributory negligence of 20 per cent to the Plaintiff.
QUANTUM:
Counsel agreed various heads of damages, and the only matters remaining for my assessment are general damages for pain and suffering and loss of amenities, and future economic loss.
Counsel for the Plaintiff submitted figures of $70,000 and $75,000 respectively while Counsel for the Nominal Defendant submitted $45,000 and $30,000.
The Plaintiff suffered the following injuries:—
Hypothermia, shock and altered blood pressure
Commuted fracture of LI vertebrae with wedging and subluxation
Fracture through the base of the right radius
Fracture of the ulna
Styloid process on the right side
Fracture of the interior surface of T12
Right side of pulmonary contusions
Pneumo-mediastinum both sides
Hyperaesthetic feet
She was initially taken to the Gympie Hospital and was resuscitated and transferred to the Spinal Unit at the Princess Alexandra Hospital. She had an operation to her back with the insertion of Harringtons Rods. She was in the Intensive Care Unit for 3-4 days. A laparotomy was performed, which has resulted in some scarring. She remained in hospital for two months. On her discharge she wore a fibreglass body brace for 6-8 months. The Harrington Rods were removed on 5 December 1986. The Plaintiff suffered a very severe fracture dislocation. She has a 30% whole of body impairment, 20% orthopaedic and 10% additional neurological impairment.
The Plaintiff has been able to resume her pre-accident social and recreational activities. She has returned to gym work which she does at least five times a week and has done for the last six years. This regular gym work has resulted in the reduction of her permanent disability and is something which is the subject of favourable comment in most of the medical reports. She undertakes a gym programme designed specifically for her.
She gave me the impression that she is a person who is stoic and positive and has assisted herself greatly in recovering from major injuries. She says that she has learnt to adapt to household tasks although there an difficulties with some of them such as vacuuming, making beds and bathing the children.
She left school at age 15 having completed Grade 10 and obtained a job at a bakery in March 1983. She stayed there for 8-10 months and then obtained employment with a clothing company as a seamstress and remained there for 12 months. She then travelled to Toowoomba and worked in a cafe for 6 or 7 months. She then obtained casual work at Hungry Jack's for 2 to 3 months, and returned to Gympie in December 1985. She was not then undertaking any paid work but she was doing unpaid work as a sewing machinist. She had some expectations she would be offered a paid job at some stage. She was doing this unpaid work at the date of the accident.
The Plaintiff returned to work approximately 18 months after the accident. In November 1987 she returned to work as a machinist in the clothing factory in which she had previously worked. She remained there until the birth of her first child on 7 April 1989.
She was back driving within six months of the accident She has some continuing difficulties with driving for long periods.
She has scarring in three places - her abdomen, chest and back. She was initially embarrassed by them but not so much now. She has given birth to two children since the accident.
She is now employed as a casual cleaner with the Department of Primary Industry for 4-4½ hours, five days a week. She is currently earning $487 per fortnight.
She plans to do an enrolled nurse's course at Gympie TAFE and become a nurse. Her capacity to undertake this work has been assessed by Dr Boyes and Miss Coles. She remains determined but the reality is that there may well be some restrictions on her capacity for this type of employment.
She suffered very significant pain in the period immediately following her accident. She says that in the four weeks after her admission to hospital “everything hurt”. She received considerable Pethidine and other medication. When she was taken off pain-killing medication the pain was still quite bad. She felt that she was going to “pop open”. The body brace was very cumbersome. She still has some limited incontinence. She continues to have after-effects from working, including back ache and burning pains. They are not sufficient to stop her working. She has a sitting tolerance of 15 to 30 minutes after which she experiences aching and burning pain. The inside of her left knee to a hard touch is not painful but to sensitive to cold water. She experiences some problems with her left arm while training at the gym. She continues to have difficulty sleeping.
I consider that in the 6 to 12 months following the accident Ms McMaster suffered very considerable pain and her loss of enjoyment of life was severely diminished. Since then she has continued to experience problems and has coped largely because of her positive mental attitude. She has had major surgery. She has a significant permanent orthopaedic and neurological disability.
I consider that an appropriate award of general damages for pain and suffering and loss of amenities is $60,000. To this should be added interest on $50,000 at 2% for five years.
Prior to the accident Ms McMaster had a patchy work history and I consider that this is relevant in the assessment of her future economic loss. In calculating a figure of $75,000 her Counsel has allowed loss at $300 per week for 15 years between age 40 and age 55 and he has then allowed a discount of 20% for contingencies and vissicitudes. I consider that some additional discounting is necessary because of her past employment history. I accept that he has calculated only a period of 15 years which he says is conservative in view of the reservations expressed by the doctors and Miss Coles about her possible continuing physical disabilities and their impact on her employment prospects; they mean that her loss may commence at an age earlier man 40 and she may have to cease full-time or even part-time employment before age 55.
I consider that an appropriate award of damages for future economic loss is $50,000.