Foster v Claybourn's Discount Tiles Pty Ltd
[2010] QDC 290
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- Unreported Judgment
- Foster v Claybourn's Discount Tiles Pty Ltd[2010] QDC 290
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Foster v Claybourn's Discount Tiles Pty Ltd[2010] QDC 290
Foster v Claybourn's Discount Tiles Pty Ltd[2010] QDC 290
DISTRICT COURT OF QUEENSLAND
CITATION: | Foster v Claybourn’s Discount Tiles P/L & Anor [2010] QDC 290 |
PARTIES: | MICHELLE LEE FOSTER v CLAYBOURN’S DISCOUNT TILES PTY LTD and SUNCORP METWAY INSURANCE LIMITED |
FILE NO: | BD 1116 of 2009 |
DIVISION: | Civil jurisdiction |
PROCEEDING: | Claim for damages for personal injuries |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 30 July 2010 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 15 – 17 June 2010 |
JUDGE: | Robin QC DCJ |
ORDER: |
|
CATCHWORDS: | Motor Accident Insurance Act 1994, s 5(1) Civil Liability Act 2003, s 59, s 61, s 62 Civil Liability Regulation 2003, schedule 3, schedule 4 Ahadizad v Emerton (2002) 35 MVR 388; [2002] ACTSC 20, considered Carty & Carty v Parnell and Anor (as Executors) [1992] QCA 112, considered Carrier v Bonham & Anor [2000] QDC 226, applied Clark v Hall [2006] QSC 274, considered Cook v Bowen & Anor [2007] QDC 108, cited Dowsing v Goodwin [1997] NSWCA 95, considered K & S Freighters Pty Ltd v Nelmeer Hoteliers Pty Ltd (2001) 33 MVR 467, considered Gillett v The Queen (2006) 46 MVR 429; [2006] NSWCCA 370, considered Lafranchi v Transport Accident Commission [2006] 14 VR 359, distinguished Leahy v Beaumont (1981) 27 SASR 290, considered Jones v Dunkel (1959) 101 CLR 298, cited Imbree v McNeilly (2008) 248 ALR 647, cited Miller v Council of the Shire of Livingstone [2003] QCA 29, considered NSW Insurance Ministerial Corporation v Jones [1994] NSWCA 244, applied Roberts v Ramsbottom [1980] 1 All ER 7, considered Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; 170 ALR 594, considered Scholz v Standish [1961] SASR 123, distinguished Piening v Wanless (1968) 117 CLR 498, cited Personal injuries suffered by plaintiff in motor vehicle accident – defendants’ approaching vehicle moved to its incorrect side of road – defendants denied liability on basis that cause of accident was their driver’s suffering a temporal lobe seizure, a diagnosis made months afterwards – whether negligence of driver shown – whether “wrongful act or omission” shown – evidence showed driver retained some degree of control of vehicle |
COUNSEL: | J Sewell for the plaintiff R Green for the defendants |
SOLICITORS: | Trilby Misso Lawyers for the plaintiff Eardley Motteram solicitors for the defendants |
- [1]Both liability and quantum are in issue in this claim for personal injuries arising from a motor vehicle accident that occurred about 7.40 a.m. on 1 December 2006 on Saltwater Road on the northern outskirts of Maryborough. The plaintiff was a 24 year old driving to work at Big W in Maryborough who had got barely 200 metres from her mother’s place where she was residing at the time with her three year old daughter (in consequence of an earlier motor vehicle accident the previous September in which she had been injured as a passenger) when a head-on collision with the first defendant’s vehicle occurred. The plaintiff was blameless in the collision (although the court heard that she felt responsible for the defendants’ driver’s head injury – even more so when he died a few months later). The first defendant’s vehicle (which it is convenient to call the defendants’), heading in the opposite direction towards Hervey Bay, veered to its incorrect side of the road; the plaintiff apparently moved her new vehicle to her left as far as she could, but there was not enough room. Photographs show an impact at the driver’s front corner of her vehicle. The driver’s window broke and the plaintiff was able to exit the vehicle through it, but only after extricating herself with some difficulty. In the process, she suffered injuries to her feet which had been pinned under the accelerator and brake as the vehicle crumpled to an extent. The airbag inflated, causing significant bruising to develop on the chest. There appears to have been some shoulder injury and maybe some back injury too (although it was more than 11 months before any complaint about the latter to a general practitioner seen regularly by the plaintiff was recorded).
- [2]The defendants’ driver was Mr Donald Claybourn (d.o.b. 13 April 1934) who was 72 years old at the time of the accident. He died on 29 March 2007, having developed a malignant brain tumour of the left temporal lobe that presented with decreasing intellectual function and then a seizure. Dr Weidmann, a neurosurgeon never involved in any of Mr Claybourn’s medical or surgical care, has provided an opinion relied on by the second defendant which expresses a view, with the wisdom of hindsight, that “it is highly likely that Mr Claybourn did suffer a temporal lobe seizure while driving on 1 December 2006 and that this seizure was very likely to have been the cause of this accident”, other potential causes such as lack of due care and attention being admitted as possibilities. Mr Sewell, counsel for the plaintiff suggested other causes such as a mechanical failure of the vehicle and even that Mr Claybourn was intoxicated, based on the contents of a hospital discharge report (discharge on 18 December 2006) which refers to “a degree of alcohol withdrawal requiring Diazepam PM” (apparently on admission to Royal Brisbane Hospital after transfer from Hervey Bay) and on discharge from a rehabilitation unit: “a peripheral sensory neuropathy was noted on examination consistent with an alcoholic toxic neuropathy.” This was noted during rehabilitation.
- [3]Dr Weidmann provided a supplementary report dated 1 December 2009 in light of additional information that became available.
- [4]A CT scan was performed at Hervey Bay Hospital on 1 December 2006 after the accident, head, neck, chest, abdomen and pelvis being involved. The report of Southern X-Ray Clinics notes nothing abnormal. There was a further CT scan of the head on 13 December 2006, the report describing it as unfortunate that the “previous CT brain is not available for comparison or review at the time of reporting.”
- [5]The Royal Brisbane Hospital progress notes for 1 December 2006 at 23:20 EST written up the following day refer to a “closed head injury with relatively normal CT brain.” Dr Weidmann’s supplementary opinion is weaker than his original one:
“I have written one report dated 23rd February 2009. In that report I gave my opinion that Mr. Claybourn had probably suffered a complex partial seizure leading to the motor vehicle accident in question.
You have now pointed out the statement of Kerry Oliphant dated 28th May, 2007 in which she states she was travelling behind Mr. Claybourn for about one kilometre and during that whole time he was swerving left to right across the road. I understand that this was for a period of at least seventy seconds.
I still believe it is likely that Mr. Claybourn suffered some type of seizure leading up to this accident. These seizures usually impair consciousness to some extent. It would be unusual for a seizure to continue for seventy seconds but this can occur. The fact that the vehicle remained on the road during this time would suggest that Mr Claybourn did have some degree of voluntary control. It would be very difficult to state how much voluntary control he had but it would appear that there was at least some voluntary control.”
The additional information (borne out by Ms Oliphant’s evidence at trial and also that of another following driver, Ms Ogilvy) has led Dr Weidmann to revise his original confident opinion which was given without access to scans, and it may be without access to all of the reports. CT scans may but will not necessarily reveal a tumour. Nothing of concern emerged until the CT scan of 13 January 2007. Mr Claybourn’s condition must have deteriorated; an MRI was carried out in February 2007, revealing an aggressive tumour, whose malignant nature was confirmed following surgery. On the medical evidence, the tumour which killed Mr. Claybourn was of a kind that is particularly aggressive in men of his age – which reduces the degree of confidence one could have that its would have been present or had consequences months before on the accident date.
- [6]The parties were content to proceed on the basis that the circumstances productive of liability corresponded with those described in s 5(1) of the Motor Accident Insurance Act 1994:
“This Act applies to personal injury caused by, through or in connection with a motor vehicle if, and only if, the injury –
- (a)is a result of –
- (i)the driving of the motor vehicle; or
- (ii)a collision, or action taken to avoid a collision, with the motor vehicle; or
- (iii)the motor vehicle running out of control; or
- (iv)a defect in the motor vehicle causing loss of control of the vehicle while it is being driven; and
- (b)is caused, wholly or partly, by the wrongful act or omission of a person other than the injured person.”
The preceding definition provides that wrongful act or omission “includes” a negligent act or omission.
- [7]The defendant insurer seeks the following findings of fact - submitting that on that basis there was no negligence by Mr Claybourn:
“ i) At the time of the journey in which the collision occurred, Mr Donald Claybourn the driver of a Utility registered 482-HMO to Claybourn’s Discount Tiles Pty Ltd, on 1 December 2006 was suffering from a Glioblastoma Multiforme (the “Tumour”).
- The Tumour, on 1 December 2006, caused Mr Claybourn to suffer either a seizure or a series of seizures;
- The seizure or seizures or the post-seizure state deprived Mr Claybourn of his ability to judge his capacity to drive and his ability to effectively control his vehicle in accordance with the relevant traffic regulations;
- The seizure or seizures or post-seizure state suffered by Mr Claybourn caused him to weave his vehicle across the road both within his lane on Saltwater Creek Road and outside of his lane extending into the opposite lane and the verge on the left-hand side of his lane past the solid white line bordering the edge of the lane;
- It was this lack of control of the vehicle that caused the collision between the Utility and the Plaintiff’s vehicle.”
Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18; 170 ALR 594 is relied on to show that the doctrine of res ipsa loquitur (the thing speaks for itself) has no application because the collision is not unexplained. In the leading judgment, reference is made to Piening v Wanless (1968) 117 CLR 498 (at ALR 603):
“Barwick CJ, who gave the leading judgment, said [at 506-7]:
“But the majority of the Supreme Court have said that the failure of the steering was the occurrence which bespoke negligence. To this there are, in my opinion, two answers. In the first place, the occurrence which had to be examined to ascertain whether it furnished evidence of negligence on the part of the driver was the accident, that is to say, the running off the road. The failure of the steering was, I think, the explanation of that occurrence …
[29] McTiernan and Kitto JJ agreed with the Chief Justice. Menzies J said [at 509]:
[T]he plaintiff could have made a case merely by proving what had happened, res ipsa loquitur.
The plaintiff, however, did no such thing …
Menzies J went on to point out that the case had been left to the jury on the basis that the defendant had ‘failed to take reasonable care of the condition of his vehicle in that he drove it and continued to drive it knowing that it had defective brakes”.
[30] Windeyer J said [at 511]:
If a motor car runs off the road, that fact, standing alone and unexplained, provides some evidence that the driver was negligent. But here much more was known than that the vehicle ran off the road. The occurrence was not unexplained. That the steering mechanism had suddenly failed was not in dispute. Both sides accepted it as the fact. Therefore the only way in which any place could be found for res ipsa loquitur would be if negligence on the part of the driver could be inferred from the unexpected failure of the steering mechanism [emphasis added].
[31] Although the emphasised passage shows that his Honour thought that running off the road was the relevant occurrence and that it had been explained, the last sentence in this passage perhaps indicates that Windeyer J, contrary to other members of the court, also thought that the failure of the steering mechanism could be regarded as an occurrence for the purpose of the principle. But with respect we think that the view expressed by Barwick CJ is in principle the correct one. Res ipsa loquitur is concerned with negligence arising from an unknown or specified cause. It is concerned with an external event whose cause is under the control of the defendant. It is a principle that is as much, perhaps more, concerned with proof that the defendant was causally responsible for the occurrence as it is with proof of a breach of duty. In Mummery v Irvings Pty Ltd, ((1956) 96 CLR 99 at 116), Dixon CJ, Webb, Fullagar and Taylor JJ said that “[t]he requirement that the accident must be such as in the ordinary course of things does not happen if those who have the management use proper care is of vital importance and fully explains why in such cases res ipsa loquitur”.
[32] Once the cause of the external event is identified, the question becomes whether the plaintiff has proved that that cause was the product of negligence. In Barkway v South Wales Transport Co Ltd ([1950] 1 All ER 392 at 394-5) in a passage which was cited with approval in Mummery v Irvings Pty Ltd ((1956) 96 CLR 99 at 115), Lord Porter said:
The doctrine is dependent on the absence of explanation, and, although it is the duty of the defendants, if they desire to protect themselves, to give an adequate explanation of the cause of the accident, yet, if the facts are sufficiently known, the question ceased to be one where the facts speak for themselves, and the solution is to be found by determining whether, on the facts as established, negligence is to be inferred or not.’
…
[36] As soon as the immediate cause of the accident is established, the focus of the case changes. The question then becomes whether that cause was the product of negligence on the part of the defendant. That is the effect of Mummery v Irvings Pty Ltd ((1956) 96 CLR 99 at 115, 117) and Piening v Wanless (1968) 117 CLR 498.”
- [8]I am not convinced that “wrongful act or omission” in the context of s 5(1) is limited to inappropriate conduct (here, managing one’s vehicle so that it is proceeding on the wrong side of the road) amounting to common law negligence or something worse, as where something is deliberately done, so that, morally, the person whose conduct is in question can be regarded as blameworthy. A person would not be blamed whose inappropriate management of his vehicle was attributable to a sudden serious medical event of a kind which he had no reason to foresee as a possibility.
- [9]The ordinary approach to circumstances like the present appears in a property damage case, Carty v Parnell and Anor (Executors) [1992] QCA 112, where the Court of Appeal said:
“It was common ground that the collision occurred on the plaintiffs’ correct side of the road and that, shortly prior to the collision, when the vehicles were separated by some 40 metres or so, the deceased’s vehicle veered on to its incorrect side of the road and into collision with the semi-trailer. In the absence of further evidence, the only reasonable inference was that the veering movement was negligent and was the sole cause of the collision. The defendants did not assert that the plaintiffs’ driver was negligent.
However, they alleged that the collision and its consequences “were caused by the effects of a medical condition … which suddenly and without warning afflicted the said William John Parnell as he was driving the said Toyota sedan along the Bruce Highway towards the oncoming prime mover and trailer which condition either killed the said William John Parnell then and there or so completely deprived him of the ability to properly manage and control the said Toyota sedan that he could not prevent or avoid the said collision.” That medical condition, which was not particularised in the defence, was later particularised as “the sudden rupturing of the aorta and/or blacking out and/or cramp”.
There was a conflict in medical testimony as to whether the aorta, which had certainly been ruptured by the time of post-mortem upon the deceased, was ruptured before the collision or in it. The trial judge, as he was entitled to, accepted the medical testimony which favoured the view that the aorta was ruptured in the collision. The defendants did not contest his Honour’s conclusion in this respect on appeal.
However, Mrs Parnell, the wife of the deceased, who was a passenger in the Toyota sedan at the time of the collision, gave evidence that just before the accident, the deceased turned his head left and uttered a sound which she could best describe as a groan. He had made a similar sound, she said, on a previous occasion two or three years before when his arm had pins and needles. From that, and apparently nothing more, his Honour inferred that ‘the better view of her evidence is that it demonstrates that he was in a state of unawareness or of loss of consciousness, in either event, short of death.’’
We find it impossible to see how His Honour could have drawn that inference from that evidence. His Honour’s conclusion that the deceased was in a state of unawareness or loss of consciousness is unsupported by any medical evidence or by any observable state from which a reasonable layman could infer that a person was unconscious. The highest the medical evidence went in this respect was, as His Honour recognised, that the deceased suffered from a heart condition or a partial obstruction of the vertebra-basilar arteries as a consequence of cervical spondylosis either of which could have produced giddiness, confusion, disorientation or loss of consciousness. This fell far short of establishing loss of consciousness on this occasion as anything higher than a mere possibility.
His Honour seemed to recognise this and to think that this was sufficient to negative negligence because he said “that the plaintiff had to positively demonstrate negligence and to that extent exclude the possible consequences of such conditions”. The plaintiffs carried no such heavy burden. It was sufficient for them to establish, on the balance of probabilities, that the inference of negligence should be drawn. In order to negative that inference, there would need to be some other inference, inconsistent with it and equally probable. Mere hypothesis based on speculation is not enough. In the absence of such competing inference the plaintiffs were entitled to judgment”.
- [10]The cases are legion in which liability is established against a defendant driver whose vehicle veers to the wrong side of the road resulting in personal injury or property damage. The ordinary conclusion is that the movement of the vehicle bespeaks negligence: other explanations offered rarely avail the defendant. I am not satisfied that under the Act negligence need be shown; keeping one’s vehicle on its correct side of the road when there is approaching traffic is baseic to how one is expected to drive; defendants’ causing or allowing the vehicle to move as it did is a “wrongful act or omission” within the ordinary meaning of that term. The width of such an expression is indicated in some relatively venerable decisions digested in Words and Phrases Legally Defined (Butterworths) (2nd):
“WRONGFUL ACT OR DEFAULT
“Section 66 [of the Merchant Shipping Act 1906] clearly contemplates findings of default against persons who are not certified officers, and the power to impose the penalties mentioned on those who are affords no sound ground for restricting the expression ‘wrongful act or default’ to conduct which ought to be punished. The ordinary, natural meaning of the words holds nothing to suggest such a limited interpretation. In my opinion neither the policy nor the text of the legislation calls for any modification of that meaning and I therefore conclude that the proper connotation of ‘wrongful act or default’ is a breach of legal duty of any degree which causes or contributes to the casualty under investigation.” The Princess Victoria, [1954] N. I. 178, per Lord MacDermott, LC.J., at p. 178.
“The language of the statute … is large enough to embrace death arising from either type of default. In Doe d. Dacre v. Dacre [(1798), I B. & P. 250], at p. 258, Eyre, C.J., said: ‘I do not know a larger or looser word than “default” …. In its largest and most general sense it seems to mean, failing.’ It is a relative term and takes its colour from the context .… ‘Default’ means not doing something which you ought to do, having regard to the relations which you occupy towards the other persons interested in the transaction.” Ibid., per Rich, J., at p. 620.
Australia. – “In my opinion, the language or the Act [i.e. Lord Campbell’s Act] is capable of being applied to the case of death resulting from breach of contract. The words are very general. ‘Wrongful act’ is a term which in a perfectly natural meaning can be applied to breaches of contract as well as to torts.” Woolworths, Ltd. v. Crotty (1942), 66 C.L.R. 603, per Latham, C.J., at p. 619.”
- [11]On this basis, I would hold the defendant liable. I am in no doubt whatever that community expectations would be that the plaintiff ought to have redress under the Compulsory Third Party insurance arrangements in respect of injury caused by the way in which the defendants’ vehicle was managed. Mr Sewell’s submissions assert that if the defendant were to prevail, his client, on the basis of his researches, would be “the first plaintiff in the published history of Australian law to be denied a remedy in analogous circumstances.”
- [12]If negligence must be established, which Mr Sewell (who referred the court to the bee sting case of Scholz v Standish [1961] SASR 123) appeared to accept, my view is that the plaintiff succeeds. Mr Sewell accepts that authorities confirm the “theoretical availability” to a defendant of a plea of inevitable accident where there is a dramatic medical event, but notes that in practice in Australian jurisprudence this never happens with the consequence that an innocent person suffering injury has no remedy.
- [13]In Lafranchi v Transport Accident Commission [2006] 14 VR 359, the authority relied on by Mr Green for the defendant insurer, the injured person had been compensated and the insurer was claiming indemnity from the driver of the errant vehicle. I think that the “bee sting” cases are distinguishable on the basis that they involve an intervening agency independent of or external to the driver of the insured vehicle. At the conclusion of the hearing there were loose ends for Mr Green to tidy up, including the admissibility of evidence from Mr Claybourn’s son to the effect that the late Mr Claybourn was a model driver (unlikely to have been negligent) and identification of a New Zealand authority he believed he recalled which showed an injured plaintiff denied a remedy where the defendant suffered a medical misadventure. (Nothing helpful was forthcoming. I am inclined to think the evidence was admissible in principle. However, the witnesses’ apparent ignorance of his father’s history in relation to alcohol leads me to doubt the reliability of accolades lauding the deceased’s driving proficiency.)
- [14]The following extracts from the reasons in Lafranchi sufficiently tell the story:
“[2]…TAC was entitled to indemnity if it established on the balance of probabilities, that the accident which injured Ms Thomson was caused by the negligence of Ms Lafranchi. The trial judge so held, and Ms Lafranchi was ordered to indemnify TAC. She appeals from that judgment.
…
[5] Both TAC and Ms Lafranchi led expert evidence about possible medical causes of the accident. Both experts said that there were a number of possible reasons why Ms Lafranchi had veered off the road and that it was not possible to state with certainty what had caused the accident. The expert called by Ms Lafranchi, Dr Gilligan, testified that it was likely that Ms Lafranchi had driven off the road because she had blacked out. TAC’s expert witness, Dr Odell, said that a blackout was unlikely, and that Ms Lafranchi might have had a temporary lapse of concentration or fallen asleep. (The expert evidence will be discussed in more detail later in this judgment.)
The reasoning of the trial judge
[6] TAC, as the plaintiff at trial, relied on the principle of res ipsa loquitur (The Latin phrase means ‘the matter (or thing) speaks for itself’) (the RIL principle). As the learned trial judge noted, the essential elements of res ipsa loquitur were restated by Gleeson CJ and McHugh J in their joint judgment in Schellenberg v Tunnel Holdings Pty Ltd, ((2000) 200 CLR 121, 170 ALR 594, [2000] HCA 18 (Schellenberg)) in the following terms:
- (a)there must be an absence of explanation of the occurrence that caused the injury;
- (b)the occurrence must have been of such a kind that it does not ordinarily occur without negligence; and
- (c)the instrument or agency that caused the injury must have been under the control of the defendant. (At [25], citing Piening v Wanless (1968) 117 CLR 498; [1968] ALR 342 and Anchor Products Ltd v Hedges (1966) 115 CLR 493; [1967] ALR 421).
…
[12]…the reference to “the inference of negligence … raised by the circumstances of the accident” signifies his Honour’s application of the RIL principle. That is, his Honour was satisfied that all three necessary conditions were satisfied. Moreover, there being – in his Honour’s view – no evidence to support a non-negligent explanation of the accident, the inference of negligence to which the application of the RIL principle gave rise was sufficient to establish TAC’s negligence case on the balance of probabilities.
[14] … the application of the RIL principle rendered the positive finding as to causative negligence superfluous, the absence of evidentiary support for it is, in the end, immaterial.
…
- The effect of the concession made at trial
[17] It was submitted for TAC that, having made the concession at trial about the second necessary condition, Ms Lafranchi should not be permitted on this appeal to withdraw that concession.
…
[27] In our view, it is “not only competent but expedient in the interests of justice” (Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, cited in Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438; see also Bremner v Sinclair (No 2) [1999] NSWCA 407 at [32]-[34]) in the present case to permit Ms Lafranchi to withdraw the concession.
…
[46] In his report, Dr Odell expresses himself to be in “general agreement” with the proposition advanced by Dr Gilligan, the expert called by Ms Lafranchi, that:
… on the balance of probabilities … Ms Lafranchi blacked out or had some impairment of consciousness which led to the crash.
Of course, Dr Odell qualifies his agreement by extending the proposition to include:
… a lapse of concentration or perhaps even briefly falling asleep.
[47] Once again, however, Dr Odell says nothing to suggest that the latter causes – which would almost inevitably suggest driver fault – were more likely (based on frequency of occurrence) than a blackout or impairment of consciousness – which would not. In the end, Dr Odell is constrained to say that there are “very many possible causes of such a situation,” and to agree with Dr Gilligan’s view that:
… it will never be known exactly what occurred.
[48] On that evidence, we could not possibly be satisfied that the accident in question (compare Schellenberg at [25]):
… was of such a kind that it does not ordinarily occur without negligence.
…
[53] Our conclusion that the RIL principle was inapplicable is sufficient to dispose of the appeal. As senior counsel for TAC effectively conceded, without the assistance of the inference of negligence his client could not succeed on the balance of probabilities”.
- [15]From a policy standpoint, the outcome is unsurprising. That the CTP regime has led to a jurisprudence which demands an extremely high level of performance from drivers was noted by Kirby J in Imbree v McNeilly (2008) 248 ALR 647 at [165] ff and in Carrier v Bonham [2000] QDC 226 at [73] ff.[1] It may be unsurprising that similar policy considerations might operate to protect drivers such as Ms Lafranchi if their conduct is not morally blameworthy, sparing them financial ruin if they have to meet an injured plaintiff’s claim and costs. I do not read the reasons in Lafranchi as an indication that a Ms Thomson in that matter should have been left without any useful remedy.
- [16]The courts have been tough on defendant drivers suffering a “sudden and unheralded incapacitating event”: in Dowsing v Goodwin [1997] NSWCA 95 one reads at page 3:
“Negligence law in Australia remains wedded to the fault principle and the requirement that the plaintiff bears the onus of proof. A plea of inevitable accident is simply a denial of negligence. (Jockel v Jockel [1963] SR (NSW) 230 at 233.) A sudden and unheralded incapacitating event, such as a bee sting or a stroke, may preclude a finding of negligence where the driver had insufficient time to avert the ensuing accident. (Billy Higgs & Sons v Baddeley [1950] NZLR 605; Robinson v Glover [1952] NZLR 659); Waugh v James Allen Ltd [1964] 2 Lloyd’s Rep 1. Since the duty is to take reasonable care, it follows that (in Lord Blackburn’s words) “when a man is suddenly and without warning thrown into a critical position, due allowance should be made for this, but not too much.” “Not too much” because the reasonable driver is aware of the potential risk of the activity and may be expected to drive “defensively” in the sense of making some allowance for dangerous situations not flowing directly from his or her own neglect (Stoeckel v Harpas (1971) 1 SASR 172 n). Thus, even when the driver is subject to a sudden and unavoidable onset of pain or other disabling factor, he or she will be expected to exercise reasonable care by slowing down or pulling over to the side of the road if such a reaction to the emergency is possible (Roberts v Ramsbottom [1980] 1 WLR 823 at 832; Leahy v Beaumont (1981) 27 SASR 290). A driver cannot take refuge in the fact that he or she was unconscious at the moment of impact if that dangerous situation was the product of lack of reasonable care. (Cf Jimenez v The Queen (1992) 173 CLR.) Even if the state of unconsciousness comes upon the driver unawares, there may still be liability if the driver should not have allowed himself or herself to be behind the wheel at the time.”
The plaintiff succeeded against an insulin dependent diabetic taken to have suffered a hypoglycaemic attack. In Roberts v Ramsbottom [1980] 1 All ER 7, a clouding of consciousness falling short of automatism did not avail the driver who “retained some control, albeit imperfect” – alternatively because he had “continued to drive when he was unfit to do so”. That the defendants’ vehicle here was observed to move to its incorrect side of the road after its motion had attracted attention as odd (specifically, because of inexplicably low speed) and then return to its correct side of the road before again veering right into the plaintiff’s path strongly suggests (as Dr Weidmann appreciated) at least a modicum of control. Drivers who continued driving for a couple of blocks (K & S Freighters Pty Ltd v Nelmeer Hoteliers Pty Ltd (2001) 33 MVR 467) and for as little as 80 metres (Leahy v Beaumont (1981) 27 SASR 290) have been held liable, on the basis of negligence.
- [17]Even in the criminal jurisdiction, convictions for dangerous driving have survived appeal where there was a sneezing attack (Ahadizad v Emerton (2002) 35 MVR 388; [2002] ACTSC 20) or an epileptic seizure: Gillett v The Queen (2006) 46 MVR 429; [2006] NSWCCA 370.
- [18]Mr Green, in difficulty about producing authorities in which the result conformed with the one he contends is appropriate here, was constrained to rely on the principles expounded in the reasoning preceding conclusions adverse to defendants to the effect that the plaintiff must prove negligence. NSW Insurance Ministerial Corporation v Jones [1994] NSWCCA 244 was another veering across to the wrong side situation in which the defendant failed by application of the rule in Jones v Dunkel[2] on the basis of failure to call the deceased’s driver’s wife who had been his passenger. Carrier v Bonham contains the following proposition:
“[37] For these reasons I would, for the findings made by the learned trial judge, substitute findings that the first defendant's mental condition had no effect on the standard of care owed by him to the plaintiff, which, on the contrary, is to be judged by the standard of the ordinary and reasonable person, and that it did not diminish or reduce his liability in negligence to the plaintiff.”
- [19]That passage and the one set out in footnote 1 above suggest to me that the view of that Court was that the ordinary standard of care and competence in driving was to be expected of the late Mr Claybourn, whatever his medical condition.
- [20]This case does not feature a plethora of imaginable guesses and postulations in the same way as did Miller v Council of the Shire of Livingstone [2003] QCA 029, where it was considered at [31] that the court is not authorised to choose between guesses on the ground of one seeming more likely than others: “the facts proved must form a reasonable basis for a definite conclusion affirmatively drawn”.
- [21]All that stands in the way of the court’s moving directly to the usual conclusion where a defendant’s vehicle veers to its incorrect side of the road is Dr Weidmann’s opinion, which is now, as it seems to me, a relatively tentative one which the court should not rely upon in the circumstances. The doctor’s circumspection is commendable. His supplementary report reads, after the introductory paragraphs set out in [5] above:
“In answer to your specific questions:
- In your clinical practice, would you consider the reading of a CT report sufficient to diagnose a brain tumour? If not, what further investigations would you undertake before you could be confident of that diagnosis?
A CT scan is often sufficient to diagnose a brain tumour, particularly a glioblastoma multiforme. Nevertheless most cases would be investigated further with MRI to gain additional information.
- Having regard to the facts then known to Mr. Claybourn’s treating physicians, do you consider the interpretation of Mr. Claybourn’s CT scan of 13 th December 2006 (as reproduced in the discharge summary) was unreasonable?
The interpretation of the 13th December, 2006 was very reasonable given the circumstances.He had suffered a minor head injury and there was no indication of any other problems at that time.
- Could the results of Mr. Claybourn’s CT scan of 13th December, 2006 (as reproduced in the discharge summary) be reasonably explained by the head injury Mr. Claybourn sustained in the accident?
It sounded as if the temporal lobe abnormality was quite vague and non-specific. It could possibly have been the result of his minor head injury. It did not indicate the need for any additional investigations or treatment at that time.
- If you had seen Mr. Claybourn’s CT scan of 13th December, 2006 on that date, would you have suspected that he may have had a tumour? If not, what other information led you to the conclusion that on that date Mr. Claybourn had a “developing tumour in its early stages”.
If I had seen his scan at that time I would not have suspected a tumour. My statement that he was developing a tumour in its early stages is made in retrospect but this would not have been apparent at the time. In the unlikely event that one might have suspected a tumour, a follow up scan in four to eight weeks would have been arranged. One would not have confidently diagnosed a tumour at that time.
- What percentages of patients who are subsequently diagnosed with glioblastoma multiform[e] experienced a seizure prior to diagnosis?
About 30% of glioblastoma multiforme patients present with a seizure. It is probably a little higher than this with temporal lobe tumours. Seizures are therefore a common presentation of these tumours.
- In male patients of about Mr. Claybourn’s age (74 years), how quickly can glioblastoma multiform[e] cause death after the first onset of symptoms?
The prognosis is uniformly bad. It is well recognised that death can occur within several weeks from the time of diagnosis although some survive for some months. Only a minority survive more than twelve months from time of diagnosis.
- Are temporal lobe seizures usually preceded by a perceptual disturbance known as an “aura”? What are the reported symptoms experienced during an “aura”? How long [do] they usually last?
Temporal lobe seizures maybe preceded by an aura. However the significance of an aura will only be appreciated by a person who has had multiple episodes. The aura may include strange sensations or smells which may be very difficult to describe. However, when they occur repeatedly, the patient will then recognise their significance.
In answer to the question under (8) on page 3 of your letter, I state the following:
Swerving left to right for a period of seventy minutes (sic) would suggest that there was some degree of voluntary control over the vehicle. If Mr Claybourn had no voluntary control, it is likely the car would have run off the road at a much earlier time. If he had no voluntary control at all, one would have expected the car to have run off the road within ten to twenty seconds from the onset of symptoms. It would be difficult to be more specific had the episode lasted sixty, eighty or ninety seconds.
Based on this information, it remains my opinion that Mr. Claybourn probably had some type of complex partial seizure leading up to the accident in question. However the fact that he maintained some sort of control over the car for seventy seconds would suggest that there was a degree of voluntary control during this period. It is well recognised that patients with these seizures will have impaired consciousness to some degree but not necessarily total loss of consciousness. It is therefore likely that Mr. Claybourn [had] some degree of voluntary control over his actions at [the] time but it would be very difficult to comment on how much voluntary control he might have had.
Although the factual matters stated in this report are, as to the best of my knowledge, true, the veracity of the history and background information provided to me has not been independently verified. All reasonable care has been taken to ensure understanding, interpretation and accurate recording of details provided at interview.
I do not require access to any further readily ascertainable facts that would assist in reaching a more reliable conclusion.”
- [22]There was no diagnosis for the brain tumour until February 2007. Dr Weidmann confirmed that in a person Mr Claybourn’s age the kind of tumour he had develops extremely quickly. What was seen on the scan of 13 December 2006 could have been the result of the head injury which Mr Claybourn suffered causing bleeding, to the distress of the plaintiff and Ms Ogilvy, and maybe others. There was a clear CT scan taken after the accident. The objective evidence does not support a finding of a tumour on 1 December 2006.
- [23]Further, the evidence does support that Mr Claybourn, whatever his medical condition, should be found to have been able to exercise at least a modicum of control of his vehicle. He did not exercise it to the appropriate standard. Dr Weidmann’s evidence in the circumstances does not provide a foundation for the court to take seriously the notion that the late Mr. Claybourn was without capacity to control the vehicle he was driving or the time of the accident.
- [24]The plaintiff establishes liability.
- [25]She faces serious problems in my view in establishing the quantum of damages which the defendant insurer should pay at the levels contended for by Mr Sewell. It is accepted that the plaintiff suffered post traumatic stress disorder in consequence of the collision. This is unsurprising, given that it was her second head-on collision (as a person innocently involved) within three months. There is an issue as to how much of her psychological symptoms is attributable to each of the incidents. She told the defendant’s psychiatrist, Dr Chalk, that she recovered $33,000 in respect of the September 2006 event (getting to enjoy only $12,000!); Dr Chalk attributes one-third of the responsibility for the plaintiff’s current condition to the earlier incident; Dr Warlow preferred to rely on the rule of thumb applied where one cannot be sure, of allocating 10 percent to the first incident. I found Dr Chalk’s view persuasive here. He is more hopeful of therapy proving efficacious in assisting the plaintiff to deal with her psychological difficulties than is Dr Warlow, also estimates that rather fewer hours of contact with a psychiatrist and/or psychologist would be necessary.
- [26]It is accepted that the plaintiff genuinely feels pain from carrying out relatively light tasks, such as overhead work (hanging out washing, for example), vacuuming, cleaning the bath, pushing her three year old child on a swing (which strikes me as particularly curious), getting to the ground to play with the child, carrying a basket of washing upstairs or downstairs. More significant, the plaintiff genuinely believes that such pain heralds additional damage to her physically. For the purposes of this case, I accept Dr McPhee’s characterisation of all “pain” as subjective. Notwithstanding Mr Sewell’s contention that there is medical support for the existence of a physical basis for pain and difficulty in carrying out tasks of the kinds instanced, I think that is not so: the disparity between the minimal observable physical signs and the plaintiff’s account of her limitations is gross.
- [27]The plaintiff was able to get back to work on the Monday following the accident (which occurred on a Friday). She says she had to get back to work because she had exhausted her sick pay and holiday pay entitlements following the September collision.
- [28]The plaintiff was a long standing and valued employee of Big W, which extended her some consideration, it seems, by way of allocating light duties. The plaintiff moved to Brisbane within a few months and received a promotion to night manager, which marks the high water mark of her earnings history. She found that work beyond her, she says, because of the physical part (breaking orders, et cetera) which she was required to do alongside fellow employees she was supervising.
- [29]With a small number of interruptions, the plaintiff has maintained full time work. She is now comfortably settled, it seems, working for a national company with some 420 warehouse/retail outlets. At hers, she is the only female employee; her fellow workers insist on doing any heavy work, even without any request from her. She says herself she is a perfectionist anxious to perform at a high level and loath to show or even disclose any limitations. If I understood her right, she keeps employers in ignorance of the limitations she believes she has. She has been taken interstate at least once by her current employer for training. Upon the evidence, she still is a high achiever at work, albeit not earning what she did as a night manager.
- [30]The plaintiff was an unimpressive witness, typically guarded and trying to anticipate where Mr Green was going with his questions and head him off, so to speak. Although the evidence about this is thin, I do not accept that, even in her own thinking, it was a consequence of the accident which drove her from the night manager position. It may simply have been that night work proved uncongenial, at least in part.
- [31]Her GP records contain precious little of complaints about accident related injuries, although scattered throughout are isolated references to shoulders, feet and back. The plaintiff asserted that she tells the professional people she sees what she believes they need to know, rather than giving a full account of her history and situation. It seems that she may have attended a GP practice whose records were not before the court at some stage. In the circumstances, and in the absence of any clear assertion by the plaintiff that she made complaints in that quarter, I would conclude that nothing in any missing records would help her situation.
- [32]It is clear that for years before either of the collisions, she suffered depression, for which she received medication. That recourse to medication came about, it was said, because of adverse reaction to methods of contraception that were tried and because of weight problems. I am not prepared to proceed on the basis that all such difficulties were in the past by 1 December 2006.
- [33]The plaintiff would seem to have given priority to the demands of her working life over the demands of her home life. It is sad that, rather than admit the shortcomings which in her own thoughts she has to her daughter, the plaintiff has resorted to other explanations. She told the court that she had given away the child’s swing and trampoline and asserted to the child that this was a punishment for being naughty. It was sadder to hear that the child has informed the plaintiff that if the joint household which she and her mother have had since September 2006 (subject to the interruption mentioned below) is to be severed, in the “divorce”, she wants to go with her Nanna.
- [34]There is a large Griffiths v Kerkemeyer claim, based on services performed by the plaintiff’s mother, who gave evidence. That was not of the usual kind. There was no estimate in hours per week of the extent of services provided from time to time (although an hourly rate of $25 was agreed). It is clear from the mother’s evidence that if the plaintiff has to do almost any task, she can manage it. The mother is on a disability support benefit. Although the benefit came through only relatively recently, the situation described has pertained almost since the beginning, it seems to me. Within weeks of the accident, the plaintiff transferred to Brisbane to work, residing with a brother. There was no evidence of his providing gratuitous services. The daughter was left in Maryborough until the plaintiff’s mother sold her property there and was in a position to purchase in and move to Brisbane.
- [35]There is no point in attempting quantification of gratuitous services in this case, since there can be no doubt that such services as satisfied paragraphs (a) and (b) of s 59(1) of the Civil Liability Act 2003 cannot possibly have reached the joint hurdles of six hours per week and that applying “for at least six months” in paragraph (c).
- [36]Counsel undertook to provide the court with a schedule indicating their submissions regarding quantum of damages that ought to be assessed in the relevant categories.
- [37]In assessing damages under the Civil Liability Act 2003 and the Civil Liability Regulation 2003, assistance is available from Clark v Hall [2006] QSC 274.
- [38]I adopt and agree with the following paragraphs from Mr Sewell’s written submission:
“76. Section 3 of schedule 3 of the Regulation provides for the assessment of multiple injuries:
- (1)Subject to section 4, in assessing the ISV for multiple injuries, a Court must consider the range of ISVs for the dominant injury of the multiple injuries.
- (2)To reflect the level of adverse impact of multiple injuries on an injured person, the Court may assess the ISV for the multiple injuries as being higher in the range of ISVs for the dominant injury of the multiple injuries than the ISV the Court would assess for the dominant injury only”
77. The extent of whole person impairment is an important consideration “but not the only consideration affecting the assessment of an ISV” (Schedule 3 s 10).
78. In assessing an ISV, a Court may have regard to other matters to the extent they are relevant in a particular case (schedule 3 s 9). The examples of other matters are the injured person’s age, degree of insight, life expectancy, pain, suffering and loss of amenities of life.
79. In our submission, the plaintiff’s psychiatric injury is the ‘dominant injury’ as it will fall within item 12 of the Regulations (sic) with an ISV range of 2-10 ($2,000 to $11,000).”
But not with the paragraph following:
“80. An ISV of 10 and general damages of $11,000 do not, in our submission, reflect the impact of the plaintiff’s myriad (of) physical injuries. It is submitted that this is a case where it is appropriate to apply an uplift in the upper end of the ISV range to reflect, and compensate for, the cumulative effect of her injuries (see for example Carroll v Coomber & Anor [2006] QDC 146 & Kawecki v Tobin & Suncorp [2007] QDC 321” (references omitted).
The relevant provisions of the Civil Liability Act 2003 are ss 61 and 62:
“61 Assessment by court of injury scale
- (1)If general damages are to be awarded by a court in relation to an injury arising after 1 December 2002, the court must assess an injury scale value as follows –
- the injured person’s total general damages must be assigned a numerical value (injury scale value) on a scale running from 0 to 100;
- the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind;
- in assessing the injury scale value, the court must –
- assess the injury scale value under any rules provided under a regulation; and
- have regard to the injury scale values given to similar injuries in previous proceedings.
- (2)If a court assesses an injury scale value for a particular injury to be more or less than any injury scale value prescribed for or attributed to similar particular injuries under subsection (1)(c), the court must state the factors on which the assessment is based that justify the assessed injury scale value.
62 Calculation of general damages
- (1)For an injury arising after 1 December 2002, general damages must be calculated by reference to the general damages calculation provisions applying to the period within which the injury arose.
- (2)In this section –
General damages calculation provisions, applying to a period, means the provisions prescribed for the period under a regulation.”
- [39]I am not persuaded that any increase of scale amounts is called for by reason of the paragraph 78 matters here. The plaintiff was born on 16 September 1982. Any “uplift” in respect of “myriad physical injuries” (none of which have persisted in my view after the first months) would have to be modest.
- [40]In my opinion Mr Green in his submissions on quantum has been realistic and relatively generous. General damages ought to be assessed on the basis suggested by him at $11,000 on the basis of an ISV of 10:[3]
“… the psychological injury would be assessed under Item 12 providing for an ISV range of 2 to 10. It is submitted that general damages should be assessed at no greater (than) $11,000 in accordance with an ISV of 10 though it is submitted that general damages ought be awarded in the amount of $8,600 in accordance with an ISV of 8. The relevant considerations would include:
- Any level of impairment accepted by a Court to be related to the injuries arising out (of) the incident;
- The PIRS rating of 5%/6% on the evidence by comparison to the comments contained in Schedule 4 Item 12 providing the ISV range of 2 to 10 for a mental disorder with a PIRS rating between 4% and 10%;
- The PIRS rating is closer to the bottom end of the scale than to the top of the scale;
- The psychological overlay with respect to the subjective experience of pain and/or any actual organic basis for it.”
- [41]I agree with Mr Green’s submissions that past economic loss ought to be assessed on a global basis in the amount of $10,000, to which I would add $900 for superannuation (inclusive of interest) and future economic loss on a global basis (inclusive of superannuation) at $40,000 (Cook v Bowen [2007] QDC 108).
- [42]Doing the best I can in respect of future expenses for therapy, I come down at the mid-point between the psychiatrists and allow $6,400. A further $1,500 can be allowed on top of that for future medication. There is an agreed figure for past out-of-pocket expenses of $1,500 (I infer this latter figure includes provision for interest).
- [43]The plaintiff’s damages are assessed at $71,300.
- [44]Unless I hear otherwise from the parties, I will assume that the plaintiff can recover her costs of the proceeding, to be assessed.
Footnotes
[1] The Court of Appeal in Carrier v Bonham [2002] 1 Qd R 474, at 486 said:
“One reason that seems to be suggested for abandoning the norm is that there are rare cases in which it has been held or contemplated that a person might not be tortiously liable for injury caused as a result, for example, of an unexpected epileptic fit or hypoglycaemic episode; but in my view those decisions turn not on the state of mind of the defendant, but on the presence of a state of automatism, with the result that the act or conduct in question is considered not to be the act of the defendant at all, as with the behaviour induced by the bee sting in Scholz v. Standish [1961] S.A.S.R. 123”.
[2] (1959) 101 CLR 298.
[3] Schedule 4 of the Civil Liability Regulation 2003 provides:
“11 Serious mental disorder 11 to 40
Example of the injury
A mental disorder with a PIRS rating between 11% and 30%
12 Moderate mental disorder 2 to 10
Comment
There is generally only moderate impairment.
Example of the injury
A mental disorder with a PIRS rating between 4% and 10%
13 Minor mental disorder 0 to 1
Comment
For many persons who have suffered the injury there will be little or no impact on their lives.
Example of the injury
A mental disorder with a PIRS rating between 0% and 3%
Examples of factors affecting ISV assessment for items 14 to 22
- Extent of skeletal or functional damage
- Degree of cosmetic damage or disfigurement
- Adverse psychological reaction
- Availability of cosmetic repair”
Items 92 and 93 are:
“92 Moderate thoracic or lumbar spine injury – fracture, disc prolapse or nerve root compression or damage 5 to 15
Comment about appropriate level of ISV
- An ISV at or near the top of the range will be appropriate if--
- An ISV of about 10 will be appropriate if there is a fracture of a vertebral body with up to 25% compression, and ongoing pain.
- An ISV at or near the bottom of the range will be appropriate for an uncomplicated fracture of a posterior element of 1 or more of the vertebral segments, for example spinour or transverse processes, without neurological impairment.
93 Moderate thoracic or lumbar spine injury--soft tissue injury 5 to 10
Comment
The injury will cause moderate permanent impairment, for which there is objective evidence, of the thoracic or lumbar spine.
Comment about appropriate level of ISV
An ISV of not more than 10 will be appropriate if there is whole person impairment of 8% caused by a soft tissue injury for which there is no radiological evidence.