Moore v Oakley[2012] QDC 322

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 5 December 2004 the plaintiff was injured when he was struck by a motor vehicle driven by the first defendant while he was on the carriageway of a service road beside Logan Road at Underwood.  Liability and quantum are both in issue. 

Background

2. [2]
   The plaintiff was a member of a football club and had been at a function at the clubhouse on the previous afternoon: p 16. Subsequently he and some friends went to a hotel, and much later a group went by taxi from the hotel to a nightclub.^[1]Some of the party went to the entrance of the nightclub, but after ascertaining the amount of cover charge, decided that they would not go in.^[2]About the same time another taxi, a maxi taxi driven by the first defendant, pulled up and unloaded a number of people outside the nightclub.^[3]The plaintiff and another of the party went over and asked the defendant if he would take them into the city, but he declined, and drove north along the service road for a short distance before doing a U-turn and driving back towards the nightclub.^[4]As he approached the nightclub the plaintiff moved on to the road.  The defendant, however, did not stop, and his vehicle struck the plaintiff on the left hand corner, knocking him so that he fell backwards striking his head on the pavement with some force.^[5]

3. [3]
   The plaintiff had no real recollection of the circumstances of the accident, and was unable to distinguish between things that he had been told by people about it and any actual recollection of it: p 17. Evidence was given by the other people in his group, and by the defendant. Apart from any difficulties caused by the injuries suffered by the plaintiff, his memory would have been affected, no doubt, by the consumption of alcohol that night. It was clear that he had consumed a good deal of alcohol in the course of the evening, and to varying extents so had the others.

Versions

4. [4]
   Mr Edward Sailor, who gave evidence by telephone from the Northern Territory,  said that the plaintiff was just standing on the roadway under 2m from the kerb waving his two arms above his head: p 57.  When the taxi came close to the plaintiff it sped up (p 56), swerved towards him and hit him, and his head went back and struck the ground: p 53.  Mr Sailor ran over and applied first aid by using his shirt to prevent bleeding from the laceration on the plaintiff’s head, and asked for an ambulance to be called.  He said that he had been drinking after the late game at the football club, and later the group travelled to the nightclub; he did not recall their drinking at the hotel, but they might have: p 55.  He only drank beer.

5. [5]
   Mr Damien Sailor said he met up with the plaintiff at the football club where they had watched a football game, and had a couple of beers, subsequently going to a hotel: p 66. They later went to the nightclub by taxi: p 67. He said he saw the plaintiff waving his hands trying to stop the taxi and saw the taxi swerve towards him and then swerve away, hit him into the air and flip him: p 68. The taxi kept going but stopped down the road. He called for an ambulance. He did not recall where the plaintiff was at the point where he was struck, but said that he landed on the bitumen when he hit his head: p 88. He did not recall that there were cars parked at the kerb in front of the nightclub: p 86.

6. [6]
   Mr Jason Moore, the plaintiff’s brother, said that after the cab dropped other people off it went up the road and did a U-turn and came back, the plaintiff ran out to show that he had money for the fare, then back peddled a little and the cab came over and hit him and took off a little bit: p 92. It swerved in towards the plaintiff: p 122. He could not recall when he had come into the plaintiff’s company that evening but he was present before they went to the hotel: p 94. Under cross-examination Mr Moore was very vague about timings and about how much alcohol the plaintiff drank or how much of an effect it had on him: p 98. He could not recall how much he had drank himself but said he was not a very big drinker: p 99. He was rather uncooperative during cross-examination, but the aggressive and hectoring style of cross-examination adopted by defence counsel was scarcely calculated to induce cooperation. I suspect that a good deal of the content of the brother’s answers was inspired by that consideration.

7. [7]
   Mr Scorer had been at the football club earlier that afternoon, and joined the others at the Glen Hotel at 10.30pm: p 7.  He said that after the plaintiff had attempted to secure the defendant’s taxi and had been refused, the taxi did the U-turn and as it came back the plaintiff went on to the road about 1m, and was giving the cab driver a mouthful rather than attempting to hail it, when the taxi jigged in and jigged out and clipped him, flipping him over so that he landed in the gutter: p 4.  He agreed that the plaintiff was intoxicated (p 7) and that he was about 1m from the gutter at the time when he was hit: p 10.  He did not think that there were cars parked on the service road at the time (p 8), and said the taxi moved towards the gutter before the plaintiff was hit: p 12.

8. [8]
   The defendant said that he dropped a party in the service road of the nightclub, and that while he was attending to their fare, someone come up and asked if he were for hire, and he said he was not: p29. He denied that there was any exchange of hostile words with either the group that he was dropping off or the people who came over to try to secure his cab: p 42. He did not provide any clear explanation for having refused the offer of the fare into town, since he had no other job at the time and was simply proceeding to the local taxi rank: pp 34, 38. He said that he went up the road, did a U-turn and came back, was in second gear travelling close to 40kph as he came past the front of the nightclub when one of the fellows on the footpath ran off the footpath straight in front of the car: p 32. He did not have time to do much but pull the steering wheel to the right, and hit him in the position where the dent was visible in photo 10 Exhibit 1. He stopped nearby and called the radio operator to summon police and ambulance, and then moved about 150m away until the police arrived: pp 33, 34. He said that the plaintiff had moved about a car width plus 3 to 4 feet on to the road: p 33. When cross-examined he initially agreed that the point of impact was about the position of a yellow star on one of the photos, Exhibit 1, but when it was pointed out that this was too close to the kerb if (as he said: p 30, p 37) there were cars parked at the side of the service road, he said that it only reflected the general location of the impact.

Analysis

9. [9]
   The difficulty with the defendant’s account is that it does not make any sense for the plaintiff to have behaved in the way described, which was as if he had suddenly decided to run across the service road in front of the defendant’s vehicle, without being aware that he was approaching. There was no reason for him to do that, and all of the other witnesses spoke of his moving to or on to the road as if in response to the approach of the defendant’s vehicle. Whether he was seeking to hail the defendant’s taxi, or to yell abuse at the defendant for refusing to take them, he had no reason to move into the path of the defendant’s vehicle, and in the latter case, had no reason to expect the vehicle to stop. It is possible that in his intoxicated state he might have misjudged where it was appropriate to stop, but in neither situation would he have been likely to have been rushing in front of the vehicle.

10. [10]
    On the whole, I think that the more likely explanation was that the plaintiff moved on to the road to try to hail the defendant’s cab, either making another attempt to secure his services or in the belief that this was a different taxi, not having realised that the defendant had driven only a short distance to the north before doing a U-turn. People sometimes do move on to the road when trying to hail a cab, and sometimes that may put them in a position where they obstruct the line of travel of the cab; this is something that was known to the defendant at the time.^[6]

11. [11]
    The defendant was aware that there were people on the footpath outside the nightclub, and that there was at least one group who wanted to leave: p 30, p 42. He may not have been intending to stop there to pick up anybody, but there was no reason for that to be obvious to anybody there who was wanting to leave, and the possibility that someone would move on to the road to attempt to hail him, possibly even coming into his path, was certainly foreseeable by him: p 42. Yet it appears that he did not particularly keep the group of people under observation, even though he was aware that they were there and aware of their position, because he did not notice when the plaintiff started to move from the group out on to the road: p 44.

12. [12]
    The defendant said it all happened that quick, that there was a group of people on the footpath and then suddenly he was aware that one of them was coming at him, and that he was first aware that someone was coming at him when the plaintiff was actually in front of his line of travel: p 44. It seems to me clear from this passage that what was sudden was not the plaintiff’s movement on to the road, which in truth the defendant did not see, but the defendant’s realisation that the plaintiff was on the road in a position where he had not expected the plaintiff to be. The proposition that the plaintiff moved quickly on to the road when the defendant was quite close to him must therefore be reconstruction.

13. [13]
    Even if the plaintiff was moving quickly, he would not have been moving at anything like the close to 40kph that the defendant said he was moving at (p 40), and on the defendant’s account, the plaintiff had moved from somewhere on the footpath on to the road and out 3 to 4 feet beyond the parked cars which were lining the kerb. That involved moving a distance of something like 4m. The plaintiff could not have been moving faster than 10kph and was probably moving much slower than that. That suggests that at the time he started to move the defendant was at least 15m back up the road from the point of impact, probably much more.

14. [14]
    This is the real difficulty with the defendant’s account: on his version, the plaintiff had moved a significant distance without the defendant’s being aware of this until the last instant, by which time it was too late to take effective evasive action. In the circumstances, knowing what he knew, he ought as he approached to have been keeping the group of people on the footpath under observation in case any of them did move on to the road with a view to hailing him, and had he been doing so, as soon as the plaintiff began to move, he would have been able either to slow down or to swerve to his right to give him a wide berth, particularly if he was not intending to stop.^[7]Yet it is clear that he did not do so.  In truth, this was not a situation where the plaintiff suddenly flung himself on to the road at the last instant before the defendant’s vehicle reached the point where the plaintiff was standing; it was a situation where the defendant was not aware of the movement of the plaintiff onto the road until the last instant before he ran him over.  That indicates that the defendant was not keeping a proper look out, and was therefore negligent. 

Contributory negligence

15. [15]
    Turning to contributory negligence, the defendant relied on s 47 of the Civil Liability Act 2003.  I accept that the plaintiff was intoxicated for the purposes of that section, but in my opinion, the plaintiff has rebutted the presumption of contributory negligence provided by that section by establishing that his intoxication did not contribute to the defendant’s breach of duty.  The relevant breach of duty was failing to keep a proper look out, and had nothing to do with the degree of inebriation of the plaintiff.  The correct approach to s 47 is that outlined by Fryberg J in French v QBE Insurance (Aust) Ltd.^[8]The defendant relied on Hawira v Connolly,^[9] but the facts in that case were completely different and I do not consider that that decision provides any guidance in the present circumstances.  Section  47 therefore does not apply.

16. [16]
    Nevertheless, I think it must be the case that the plaintiff, in moving onto the road and attempting to hail the defendant’s vehicle, did place himself just into the path of the vehicle. I do not accept the defendant’s taxi swerved in towards him, either deliberately to strike him or because it was planning to pull up at the kerb in front of the nightclub in order to wait for a fare. It was clear, and I accept that the defendant had refused to take the plaintiff’s party from the nightclub, for whatever reason, and in those circumstances I think it exceedingly unlikely that the defendant would have, nevertheless, pulled up in front of the nightclub in order to wait for someone else to come along.

17. [17]
    The defendant maintained that there were vehicles parked by the kerb in front of the nightclub, though none of the plaintiff’s witnesses had any recollection of that. Given that I do not accept the defendant’s account of the circumstances of the accident, I am sceptical about his evidence about this, but ultimately there is no clear evidence either way, and I am not in a position to make a finding about it. I accept the defendant would not have been going to wait outside the nightclub unless there was somewhere for him to wait next to the kerb, but I do not think the defendant was going to wait outside the nightclub anyway. As to whether he deliberately swerved towards the plaintiff in order to strike him, that is a very serious allegation to make and I am not satisfied simply on the basis of the evidence of the plaintiff’s witnesses who had, themselves, been drinking and who were somewhat vague about whether there was a change in direction towards the plaintiff at a time when the plaintiff’s presence on the roadway would have been apparent to the defendant so as to justify a finding that the defendant had deliberately driven at the plaintiff so as to strike him.

18. [18]
    I think the position was simply that the defendant was driving along on the assumption that no one was going to come out on to the road to hail him and without keeping those on the footpath under observation in case any of them did, and the plaintiff, in coming out on to the road to hail him, to some extent came into his path without this being noticed by the defendant until it was too late to take evasive action. In those circumstances, it follows that the plaintiff had in fact placed himself into the path of the defendant’s vehicle, albeit in circumstances where his presence ought to have been obvious to the defendant, and where he was only slightly too far out; the latter is apparent from the fact that he must have been struck by essentially the very corner of the front of the defendant’s vehicle, as is apparent from the location of the dent in the photograph.

19. [19]
    This may be a common practice for some people seeking to hail a cab or at least a practice that some people engage in, but I think it still involves a failure to take reasonable care for one’s own safety, and on that basis the plaintiff was guilty of contributory negligence at common law. The only practical effect of his intoxication was that it probably prevented him from realising in a timely way that the defendant’s vehicle was not slowing down so that it would be a good idea to step back out of its path.^[10]

20. [20]
    With regard to apportionment, I do not consider that this is a situation where a driver of a vehicle was suddenly unexpectedly confronted with a person who had thrust himself into his path; on the contrary, it was a situation where it was reasonable to expect at least the distinct possibility that someone on the footpath would come out onto the road to attempt to hail the cab driver, and the defendant had failed to keep a group of potential hailers under observation, and had not realised that one of them had done so until it was too late to take effective evasive action. Bearing in mind the high duty which falls on the driver of a motor vehicle because of its great capacity to cause injury to a pedestrian in the event of a collision,^[11]I consider this was more serious negligence on the part of the defendant overall, and consider the bulk of the responsibility for the plaintiff’s injury should fall on the defendant.  Nevertheless, the plaintiff did deliberately place himself, if only to a small extent, into the path of an approaching vehicle in circumstances where his ability properly to assess that it was safe to do so was impaired by alcohol, and this was inappropriate behaviour even if it is not uncommon for people seeking to secure the services of taxis.  The apportionment against the plaintiff should be more than minimal, and I will allow contributory negligence of 20%.

Quantum

21. [21]
    The plaintiff was knocked out by the blow to his head.^[12]An ambulance attended the scene about 12 minutes after the call was received, and found the plaintiff conscious with a Glasgow Coma score of 15.^[13]He was given first aid and oxygen, and transported to the LoganHospitalwhere he arrived at 2.32 am.  At the hospital he was recorded as being alert and orientated, there was a laceration to the scalp, which was sutured, and an x-ray of the cervical spine did not detect any abnormality.^[14]He was observed until 6.00 am when he was given a head injury observation sheet and education about head injury, and allowed to go home.  He was advised to return if further problems developed.

22. [22]
    Later the same day he presented to the QE2 Hospital complaining that he was feeling groggy, and that he had pain in the right knee which was tender and swollen.^[15]He was complaining that he was tired, had blurred vision and a headache at the site of the suture, and had no memory of the event or for five minutes prior to the accident.  On examination the knee was swollen and there was some restriction in movement, and joint space tenderness but no bony tenderness.  The scalp had a 7 cm laceration and he was described as having signs of symptoms of concussion, as well as the right knee injury.  A CT scan of the head was ordered and an x-ray of the right leg.  There was no fracture shown in the right knee, and the CT scan revealed no cerebral contusion, no subdural or extradural collections.^[16]A summary notes also minor cuts and abrasions to the face.  It seems that following investigations the plaintiff was again discharged that night.

Medical evidence

23. [23]
    The plaintiff was seen by a psychiatrist Dr Chalk on 1 September 2005 for the purposes of a report at the instance of the second defendant.^[17]The plaintiff apparently told Dr Chalk that he had little recollection of the incident, he was taken to the LoganHospitaland then later to the QE2 Hospital as he had been blacking out and his right knee was sore and swollen.  He said that subsequently he had had a period when he was depressed and tried to hang himself and stab himself, as a result of which he was given Luvox tablets by a general practitioner which he said helped.  He had also broken up with his girlfriend of four years after he had kissed another girl, and that he had had arguments with his family, he added that he had never got on well with his father.  He complained of a strange feeling in the neck, difficulty in thinking about things and comprehension, headaches once a week, sleep disturbance, low energy level and a degree of irritability, getting agitated about small things.  He was feeling helpless and hopeless. 

24. [24]
    Dr Chalk noted that the plaintiff seemed to blame all of this on the accident, taking the view that things had been going well up to that time. Dr Chalk concluded that he suffered a minor injury with no real psychiatric sequelae. He did not think the plaintiff had a psychiatric illness of any note and did not think there was any permanent impairment that could be assessed using PIRS.^[18]He thought that the difficulties with the family were of long standing.^[19]

25. [25]
    Dr Chalk gave oral evidence; he had not seen the plaintiff since 2005, but he had seen subsequent hospital notes and records and a report of the psychologist Mr Stevenson, and they did not alter or affect the opinion he had expressed in September 2005: p 65.  He also thought the absence of post traumatic amnesia was of some significance, rather than retrograde amnesia: p 66.  He proceeded on the basis that the plaintiff did not have a period of post traumatic amnesia although he had some brief retrograde amnesia.^[20]He did not see anything to suggest that further neuropsychological evaluation was appropriate in the plaintiff’s case: p 67.  Dr Chalk thought there seemed to be a large number of factors which were influencing the difficulties the plaintiff was having since the accident: p 69.  He did not regard the head injury as of any great significance: p 75.  Under cross-examination Dr Chalk conceded that the increased absenteeism following the accident could have been caused by the symptoms suffered by the plaintiff at the time: p 77.  He conceded that a head injury could contribute to lethargy, though many other things could produce that symptom: p 78.  He also conceded that trauma to the skull could lead to depression and anxiety: p 78. 

26. [26]
    Dr Chalk could not accept that, in the absence of prior emotional problems or stressors close to the time of an attempted suicide, if there had been trauma to the skull 10 to 12 weeks earlier it was more probable than not that the trauma led to the attempted suicide: p 80. I have some difficulty with this opinion; if there was no prior emotional problems or stressors close to the time of the attempted suicide, it is difficult to see how it could have been caused by anything else. I also find it strange that he relied on an absence of post-traumatic amnesia, when his own history was of an absence of recall of the attendance by the paramedics, and his admission to LoganHospital, although the medical records show that he was then conscious, alert and orientated.^[21]The same history was given to Mr Stevenson.^[22]That sounds to me like a history of post-traumatic amnesia.

27. [27]
    On 22 December 2005 Dr Tracey, psychiatric registrar at the PrincessAlexandraHospital, wrote to someone at the Department of Corrective Services about the result of his examination of the plaintiff on 5 December 2005.^[23]He noted that the plaintiff was admitted to the Acute Adult Psychiatric Unit from 9 to 13 December 2005.  Dr Tracey recorded complaints of the plaintiff’s becoming depressed in mood with sleep and appetite disturbance, anhedonia, lack of motivation, and social withdrawal following the accident.  His relationship with his partner deteriorated, and he started to self harm.  In hospital he settled quickly on medication and was discharged with an outpatient appointment organised.  The letter recorded a diagnosis of depressive disorder in the context of psycho-social stressors including loss of employment and relationship breakdown.  At the time of the review it appeared to Dr Tracey that the plaintiff’s mental state had settled and he did not suggest further follow up was required from the mental health service.  Dr Tracey did not give oral evidence.

28. [28]
    The plaintiff was seen on 24 June 2008 by Dr Thiele a plastic surgeon for the purposes of a report to the plaintiff’s solicitors. Dr Thiele noted a 7 cm y-shaped scar on the scalp which was 9 mm at its widest point. The scar was obvious when the hair was shaved close to the head. The scarring deformity was assessed at 4% whole person on the basis of AMA5 guidelines. It could be improved with surgical revision, which would particularly decrease the width of the scar, at a total cost of $3,550. Dr Thiele was not cross-examined.

29. [29]
    The plaintiff was seen by a psychologist Mr Stevenson on 8 September 2008 for the purposes of a report to the plaintiff’s lawyers.^[24]Mr Stevenson considered that the plaintiff’s mental state was within the normal range, and his attention and concentration were unimpaired.  The history given to Mr Stevenson included that he saw the defendant’s vehicle drop off some people, drive away up the service road and turn to come back, and that he hailed the driver by putting out his hand, and that he expected it would stop to pick them up.  He did not recall anything after that until he woke in the LoganHospitalaround dawn.  The history spoke about the subsequent attendance at the QE2 Hospital.  The plaintiff complained to Mr Stevenson of becoming isolated, angry and on occasions suicidal since the accident, and he disliked being around people.  He complained that his attention, concentration and memory were affected and he felt he had lost some cognitive function and mental acuity.  He could no longer cope at work, or maintain a relationship with his girlfriend of some standing, and he lost a number of other friends and became isolated and depressed.  Other jobs did not last long and he did not feel confident about playing football. 

30. [30]
    Various tests were performed; a Beck Depression Inventory indicated a low moderate level of depression which would not ordinarily warrant medication, and an anxiety inventory indicating a moderate level of anxiety which would normally warrant anti-anxiety medication. An Impact of Event Scale revealed a moderate pre-occupation of thoughts and feelings pertinent to the motor vehicle accident. A different scale revealed results of mild for depression and moderate for anxiety and stress, while a detailed assessment of post traumatic stress showed abnormal readings for re-experiencing, avoidance, hyper-arousal and cognitive impairment.

31. [31]
    On the basis of this Mr Stevenson thought he met the diagnosis of post traumatic stress disorder, but did not consider that he warranted that diagnosis on his current presentation. Mr Stevenson explained that, although he met the criteria for post traumatic stress disorder, that diagnosis was not warranted on clinical presentation because he was not debilitated by the condition to the extent that the test scores suggested: p 61. This was because the plaintiff had returned to work and to sport, and because of his clinical appearance. Instead he diagnosed chronic anxiety with mood congruent depression. He thought that the initial response indicated a severe stress reaction, and suspected some initial cognitive impairment, and that he could have been diagnosed with an organic brain syndrome, though more recently he appeared to have been improving in his sporting interests and his employment suggesting improved psychological function. He expected the gradual extinction of the psychological symptoms over the next year or so, but a short course of psychological treatment in the meantime would be beneficial.

32. [32]
    Mr Stevenson in oral evidence was made aware of some other matters including a hospitalisation in June 2009 of which he had not been aware until that day, but said that the various matters referred to in the chronology^[25]did not alter the opinions in his report: p 51.  That answer was a little surprising, given that the admission in June 2009 was for psychiatric treatment, which seems inconsistent with his expectation that the psychological symptoms would gradually become extinct over the next year or so from September 2008.  Under cross- examination Mr Stevenson agreed that the testing showed that there had been pre-existing anxiety: p 54.  He agreed that in September 2008 there was no psychosis or significant psychopathology: p 59.  There was some positive bias in his responses, that is a degree of optimism; for example, he described his employment as secure when in fact it was not: p 61.

The plaintiff’s history

33. [33]
    The plaintiff was born on 22 June 1979 (p 13) and was therefore 25 at the date of the accident, and is now 33. He finished year 12 and had some employment in different jobs between then and the date of the accident, although he did not have any detailed recollection of his pre-accident employment: p 14. The plaintiff was employed by the Brisbane City Council between 6 October 2009 and 30 June 2010, and it appears that he was earning net $480 to $500 per week during most of that time, assuming I am interpreting correctly the pay records which are part of Exhibit 1 (Tab 4.1). There is no information from that employer about his position or performance, or why the employment ended.

34. [34]
    At the time of the accident the plaintiff was working in a food processing plant where he had been working on a regular casual basis for, he thought, a few months, earning $700 to $800 net per week: p 14. According to the employer he began work on 15 November 2004, and his average net earnings per week during his employment were $579.18, although that would have included the period after the accident as well as the period before the accident.^[26]

35. [35]
    A detailed earning report for the period of his employment shows that there were only two pay periods prior to the date of the accident in respect of a full week, for which he received $720.09 and $811.41 net respectively. He was paid weekly but there is no entry for the pay date seven days after the date of accident, suggesting that he did not work during that period at all. The following pay periods were 19 December, $771.37, 26 December, $980.94, 2 January 2005, $695.87, 9 January 2005, $555.22, and 16 January 2005, $743.94. His final pay day was 10 April 2005, but he was not paid over $743 again after 16 January, and after 6 February 2005 his top pay, $675.29, was on 6 March. On some weeks his pay was significantly less; on 20 March it was only $97.11.  On 17 February 2005 he was formally coached for an acceptably high level of absenteeism, for which he had been warned verbally on 21 January 2005.  According to the employer he subsequently resigned on the basis that he could not cope with the situation.

36. [36]
    The plaintiff was evidently not good at keeping employment records: p 30. There are no copies of tax returns in evidence. There is information available from Centrelink which indicate that various amounts of money were paid as Newstart benefits in the 2003-4 financial year and each subsequent financial year up to 15 October 2010.  The amounts fluctuate substantially, between a high in 2009-10 of almost $12,000 and a low in 2004-5 of only $1,112.34.  There is information about a number of medical certificates provided, which does not include any reference to the accident, and some details of earnings from employment which however are difficult to follow and do not appear to tally with the variation in the amounts of benefit in fact paid.  These suggest some employment with Mastercraft Roofing and TG Swimming Pools in 2004, some employment at Tangalooma Resort in 2006, and with the food processor also in 2006.^[27]

37. [37]
    Mr Damien Sailor, one of the plaintiff’s witnesses, said that he also worked for the food processor, and that after the accident the plaintiff’s work rate slowed down: p 70. He said the plaintiff was not at work for at least a week after the accident (p 75), which is consistent with the pay records. Mr Sailor continued to work there for some time and subsequently became second in charge, and gave the plaintiff further employment there in about 2008, the plaintiff still working there when he left: p 70.^[28]Mr Sailor said that in 2008 the plaintiff handled the work well: p 73. 

38. [38]
    Mr Scorer said that the plaintiff had also worked for his father on occasions, initially he thought since the accident (p 6) although subsequently he was less clear about whether it was before or after the accident: p 7. He said the plaintiff could do the work required but did not get a great deal of work because he was fourth in line when there was extra work available.

39. [39]
    Despite the difficulties in interpretation, which are considerable, the Centrelink records do not appear to be complete, and in any case depend upon the plaintiff having faithfully reported to Centrelink whenever he actually obtained income from employment. Given the general level of inefficiency of the plaintiff, particularly after the accident, and my overall assessment of him, I could not be confident that this would have always occurred, and accordingly the Centrelink records may understate, perhaps significantly, the post accident employment. The difficulty is that there is very little evidence of just what his employment was for most of the time after the accident, indeed for much of the time before the accident as well.

40. [40]
    The plaintiff had some orthopaedic problems prior to the accident, largely it seems as a result of football injuries. In January 1997 he suffered a fracture of the middle phalanx of the right ring finger.^[29]In July 1997 he suffered a fracture of the right middle finger, also in playing football.^[30]It appears that he also began to dislocate his right shoulder as result of an injury in a football tackle in about 1998, and from 2000 was attending hospitals because of problems with recurrent dislocation of the shoulder until he underwent right shoulder stabilisation surgery at the PrincessAlexandraHospitalon 24 January 2003.^[31]It appears that he was off work for a long time after this, though he saw his GP in November 2003 wanting to return to work since the arm appeared to have completely recovered.^[32]There appear to have been no other particular problems prior to the date of the accident.  Significantly, there appear to have been no presentations or treatment for any psychiatric condition prior to the date of the accident.

41. [41]
    On 21 June 2005 the plaintiff presented to the Emergency Department of the QE2 Hospital with depression and suicidal ideation. The description of his symptoms given to the triage nurse suggested that he dated his problems to the motor vehicle accident, since when he had become isolated from family and friends and had been living with various mates, and had now become homeless. He had recently stabbed himself twice in the arm, and wanted to hang himself. He was referred to the PrincessAlexandraHospitalwhere he was diagnosed with depression, but was not admitted, being given information about counselling services available: Exhibit 14.

42. [42]
    It appears that on 5 July 2005 he saw a GP for depression and received a referral to the BelmontPrivateHospital;^[33]the GP noted his problems started after a car accident in December 2004.  He was given Luvox, an anti-depressant.

43. [43]
    On 22 August 2005 he was brought by police to the Princess Alexandra Hospital Emergency Department after threatening himself and family members with a knife: Exhibit 14. He complained of being very unhappy since the motor vehicle accident the previous December, and was described as very angry. An “impression” was “personality disorder, depression”. On an assessment form his condition was described as “major depression” and there was a reference to an onset of symptoms since the car accident with minor head injury and other significant psychological stressors. He was discharged into the care of his friend, Mr Damien Sailor, with medication, but he did not attend his outpatient appointments and the contact was closed in early September.

44. [44]
    He was seen in the PA Emergency Department on 9 October 2005 after hitting himself on the head with a pool cue and stabbing his forearm with a kitchen knife. There was a shallow 8 mm laceration in the forearm. An involuntary treatment order was made identifying his problem as major depression, the order being based on a need for management and treatment in an authorised facility for which he currently lacked the capacity to consent: Exhibit 14. He was discharged on 13 October with a discharge summary identifying the principal diagnosis as “suicidal ideation/self harm situational crisis/anxious depression.” The summary refers to two years of gambling dysthymia and poor impulse control in a previously gentle, kind man, worse over the last 10 months since loss of consciousness in a motor vehicle accident, some symptoms of paranoia. He was provided with information about counselling services including anger management, and gambling.

45. [45]
    In a follow-up phone call on 20 October 2005 the plaintiff said that things were going much better and he felt happier. On 5 December 2005 he came in to see Dr Tracey, who noted a history of problems after the motor vehicle accident and “(some memory loss for event)”.  He appeared to have settled by then, and the case was closed.  It was after this that Dr Tracey wrote to the corrective services people.

46. [46]
    The plaintiff’s mother reported to the PA Hospital following the discharge on 17 October 2005 that he went missing for three days after the discharge and was exhibiting signs of paranoia, and drinking heavily. Eventually he went home, an argument ensued, he became verbally abusive and the police were called and he was arrested and spent the night in the watch house; apparently as a result he was convicted of breaching the domestic violence order.^[34]

47. [47]
    On 27 April 2008 the plaintiff presented at the QE2 Hospital with a right hand injury suffered while playing football.^[35]The right hand was painful and there was some swelling with no movement in the third, fourth and fifth fingers.  The hand was placed in a cast and sling.  X-ray revealed an undisplaced spiral fracture of the fourth metacarpal and an oblique fracture of the neck or head of the fifth metacarpal with no significant displacement.^[36]

48. [48]
    On 1 June 2009 the plaintiff presented with his mother at the PrincessAlexandraHospitalbecause he had displayed suicidal ideation and had had a knife with him all day.  His mother said that he was able to get very angry.  He was diagnosed with a major depressive episode and admitted to the AAPU.  The following day he was seen by a psychiatrist and diagnosed with depression; the history records that he had had a good year in 2008 but that the current episode was more severe over the past few months.  He remained in hospital until 22 June when he was discharged on medication including Sertraline to improve mood, Diazepam to treat anxiety and Temazepam for sleep: Exhibit 14.  He was allowed to go home on the basis that his mood had stabilised and he was engaging in therapy. 

49. [49]
    The psychologist’s notes on 24 June 2009 indicate that the mood had improved but that there were problems with social phobia. In a phone call from a psychologist on 30 July the plaintiff said he did not require a follow up. On 8 September 2009 a psychologist did a summary which gave “major depressive episode” as the principal diagnosis, and noted cluster B personality traits. The psychiatrist proposed transferring the case to a GP. A note by the psychologist on 8 December 2009 said the plaintiff was off anti-depressants six weeks ago and mood and confidence were improving; the case was closed.

50. [50]
    On 17 April 2010 the plaintiff was admitted to the QE2 Hospital after dislocating his left shoulder while playing football.^[37]It appears the dislocation was reduced under anaesthetic, and an x-ray showed that the joint had been restored but with indications of a Hill-Sachs fracture: p 196.  The plaintiff attended the QE2 Fracture Clinic, and on 4 May 2010 there was a shoulder arthroscopy and stabilisation performed.  He was allowed to go home the following day, but continued to attend the Clinic for some time.  Finally in January 2011, while working on clearing flood damage, he suffered acute renal impairment secondary to dehydration which required treatment at the QE2 Hospital.^[38]

51. [51]
    The plaintiff said that after the accident he had difficulty at work, with anger management, and in understanding things, and he would become frustrated: p 19. He spoke about self harming himself, the break-up of his relationship and problems with his parents, which involved becoming angry and yelling at people, which had not happened before the accident: pp 20-21. His mother gave evidence that she noted a change in his behaviour after the accident towards her, he would become very agitated and worked up over things, and made threats to other members of the family: p 16. She spoke about his threatening himself and other members of the family which led to him being taken to hospital, including in 2009 when he was taken to hospital after an altercation had got out of hand and she had to ring the police: p 17. She said that the plaintiff was always a little bit more fiery than his siblings, but had not made threats to his parents or threatened to hurt himself or anything like that before the accident: p 15. I accept her evidence.

General damages

52. [52]
    It was submitted for the plaintiff that his injury should be assessed under item 12, moderate mental disorder, for which the example given is a mental disorder with a PIRS rating of between 4% and 10%. It was submitted that item 9, minor head injury other than an injury mentioned in Part 3, was not appropriate as it did not adequately reflect the severity of the plaintiff’s head injury. On the other hand, counsel for the defendants submitted that the only relevant injury was either a moderate or a minor scar, items 155.4 or 155.3. However it seems to me that Part 7 does not apply in circumstances where the scarring is associated with a physical injury, since the fifth dot point in the general comment at the beginning of Part 7 states:

“Many of the physical injuries mentioned in the schedule involve some scarring from the initial injury and subsequent surgery, including skin grafting, to repair the injury and this has been taken into account in fixing the range of ISVs for the injuries.”

It seems to me therefore that the effect of the schedule is that where a scar is consequential on a physical injury, the ISV for the physical injury is assessed taking into account any consequential scarring.  The scar, which seems to be a significant one in the present case, is therefore properly taken into account when assessing the significance of the injury that produced it.

53. [53]
    In my opinion what the plaintiff suffered undoubtedly was an injury to the head, and on the face of it therefore one would expect to find the relevant injury within Part 1. However, most of the individual items within Part 1 are concerned with central nervous system injuries, or injuries involving significant or at least some brain injury. Although I have doubts about the reasoning process adopted by Dr Chalk, the fact remains that there is no medical evidence to show that the plaintiff has suffered actual brain injury, and accordingly the items concerned with brain injury or requiring brain injury would not apply in the present case.

54. [54]
    The only other item in Part 1 is item 9, minor head injury other than an injury mentioned in Part 3, which has an ISV range of 0-5. This is not an injury mentioned in Part 3 which is concerned with fractures to the face, so Item 9 would appear to be the only applicable head injury item in Schedule 4. It is clear however from the description of the examples of the injury, and from the comments, for Item 9 that it covers something which is less significant than the injury suffered by the plaintiff. There are two reasons for this: the first is that the scarring associated with the injury suffered by the plaintiff has to be taken into account as indicated earlier, and that scarring was not insignificant. It was assessed by an appropriate specialist in accordance with AMA5 criteria as producing a 4% whole person impairment, and that assessment was not challenged in cross-examination. Whole person impairment is a relevant consideration: Schedule 3, s 10. Item 88 for example refers to an ISV of not more than 10 as appropriate if there is a whole person impairment of 8% which falls within the description of that injury.

55. [55]
    The other aspect to be considered is the effect of Schedule 3, s 5, which provides that an adverse psychological reaction to a physical injury is to be treated as merely a feature of the injury. It may be noted that the dictionary in Schedule 7 makes it clear that an adverse psychological reaction does not include a mental disorder, so presumably if a person suffers a mental disorder it is to be assessed under Part 2. The next question therefore is whether the plaintiff has suffered a mental disorder. The effect of the evidence of Dr Chalk was that he had not. Mr Stevenson diagnosed the plaintiff as suffering from chronic anxiety with mood congruent depression, however it appeared that Mr Stevenson attributed the anxiety to a pre-existing condition, because of the answers on pp 53-54, that the plaintiff’s trait anxiety was insignificantly different from his state anxiety, which would indicate that life long anxiety, or long term anxiety, did pre-exist. The position therefore is that the chronic anxiety diagnosed by Mr Stevenson was a pre-existing condition.

56. [56]
    The symptoms of that condition had become worse at various times, but Mr Stevenson thought that at the time he saw the plaintiff the symptoms had settled, and he seems to have expected that they would settle further over the following twelve months.  The position therefore seems to be that the plaintiff did not suffer a mental disorder as a result of the accident.  What he suffered was an aggravation of a pre-existing condition, and that aggravation would appear to be an adverse psychological reaction for the purposes of Schedule 3, s 5; see also s 7.

57. [57]
    It appears from the various statements which have been made to doctors investigating the plaintiff’s psychological problems when they have arisen since the motor vehicle accident that the plaintiff is disposed to attribute much of his current problems to the accident. It also seems clear enough that his pre-existing psychological problems have been much more troublesome since the motor vehicle accident. These were associated with a variety of psychological stressors, but they reflect generally what looks very like a reduced capacity to cope with the pre-existing chronic anxiety. The problem here I think is not that the motor vehicle accident has produced a mental disorder in the plaintiff, but that the plaintiff appears to believe that, as a result of the motor vehicle accident, his ability to cope has been reduced, which appears to have aggravated the severity of his reactions.

58. [58]
    It seems clear enough that his reactions to stressors since the motor vehicle accident have been more severe than they were before the motor vehicle accident, which indicates a reduced capacity to cope with stressors. If the plaintiff believes that as a result of what happened to him in the motor vehicle accident he has a reduced capacity to cope, that is the sort of thing which will produce in practice a reduced capacity to cope. This is not in itself a mental disorder, or at least there is no medical evidence that it is a mental disorder. However, it does appear to fall within the description of an adverse psychological reaction to the physical injury which he undoubtedly did suffer. This is something to be taken into account as a feature of the injury when assessing the ISV for that injury.

59. [59]
    Bearing in mind this matter as well as the not insignificant scarring, it appears to me clear that the plaintiff’s head injury does not fall within Item 9, because it is more serious than the injury described by Item 9, but does not fit within any of the earlier items in Part 1, because there is no evidence of brain damage. It also does not appear to be covered by any other item in the Schedule, so the appropriate course is to assess it in accordance with s 6(3) of the regulation, and have regard to the ranges prescribed for other injuries.

60. [60]
    It appears to me that the adverse consequences referred to earlier of the physical injury are both of a lasting nature, although the evidence is that the condition of the scar can be improved with surgery. Presumably that would reduce the extent of the whole person impairment, but it is not clear that the plaintiff will undertake that surgery and a person may reasonably think that the cost involved would not be worth the improvement. That condition therefore is likely to be permanent. With regard to the plaintiff’s reduced capacity to cope with the pre-existing chronic anxiety, it is not at all clear that this is something for which anything useful can be done by way of treatment, although obviously specific flare-ups in the chronic anxiety condition can be treated and have been treated from time to time, including by hospitalisation. The chronic anxiety state apparently does not cause any particular difficulties for the plaintiff unless something happens which causes it to flare up, but if something does happen and it does flare up, I accept that it is flaring up more severely than it was before the accident, and that that increase in severity has been caused by the accident in the way I have described. There is no evidence to suggest that this situation is going to be ameliorated in the future. No doubt from time to time the plaintiff will suffer stressors in his life, and when that happens the adverse reaction of the plaintiff and the subjective effect on him will be more severe than it otherwise would be. These are matters properly taken to account under Schedule 3, s 9.

61. [61]
    In all the circumstances, and bearing in mind the ranges prescribed in Schedule 4 for other injuries, I consider that an appropriate ISV assessment for the injuries suffered by this plaintiff is 10. It follows from Item 1 in Schedule 6A that the general damages are assessed at $11,000.

Economic Loss

62. [62]
    It is clear enough that the damages for loss of earnings suffered by the plaintiff are unable to be precisely calculated by reference to a defined weekly loss. In these circumstances damages may only be awarded if I am satisfied that the plaintiff has suffered or will suffer loss having regard to his age, work history, actual loss of earnings, any permanent impairment and other relevant factors: s 55(2).

63. [63]
    There is little information about the plaintiff’s work history, though it appears that there have been periods in the past where he has worked fairly regularly in at least two positions, an unidentified position with the Brisbane City Council, and a permanent casual food processing position. It is not known how the former employment came to end; the plaintiff left the latter employment after the accident because he was unhappy about having his hours reduced, and unhappy about being counselled about absenteeism. It would be understandable if either of these things would produce some reaction in a person with chronic anxiety, and that reaction was, for the reasons given earlier, probably more severe than it otherwise would have been, but obviously it is possible that the plaintiff would have lost this employment, or left it, anyway in time.

64. [64]
    A substantial period of unemployment prior to the date of the accident can I think be explained by the difficulties with the shoulder which ultimately led to a reconstruction, which seems to have produced a lengthy rehabilitation period. It also appears that other physical injuries associated with football, and not in any way related to the motor vehicle accident, have been responsible for periods of unemployment after the date of the accident.

65. [65]
    I recognise that the plaintiff does apparently have a poor work history prior to the date of the accident, but I think it likely that his capacity to obtain and hold employment, which may have been fairly limited anyway, has been made more difficult by the adverse psychological reaction referred to earlier. I think it is probable therefore that in some of the periods since the date of the accident the plaintiff has lost income, in that he would have had a better work history had it not been for his more severe anxiety reactions to the various stressors of his life since the accident. That would not apply to the period when he was having difficulties associated with his shoulder problems in 2010.

66. [66]
    On the whole I think a realistic approach would be to say that on average it is likely that the plaintiff has lost something of the order of two months’ work per annum since the date of the accident, apart from in 2010. In other words, the various possibilities can I think appropriately be quantified by assuming that he would have done an extra two months’ work each year apart from 2010 since the accident had it not been for the reduced capacity to cope with his chronic anxiety. That suggests a figure of say $4,400 per annum^[39]for six and a half years, an amount of $28,600.  Because of the way in which this figure has been derived I do not think it would be appropriate to allow an additional amount for loss of superannuation entitlements.  It appears that for some work at least the plaintiff was not receiving superannuation.

67. [67]
    With regard to the future, the plaintiff still has potentially a significant working life of about 30 years, but perhaps as time passes and with the benefit of some treatment the plaintiff’s condition may settle and his ability to cope may improve. Accordingly it is not I think simply a matter of allowing the present value of $4,400 per annum over 35 years, which with a 5% multiplier of 876 comes to about $74,000. Such a figure should be substantially discounted for this possibility and for general vicissitudes of life, but bearing in mind the plaintiff’s age and the severity of the flare-ups in the past, on the whole I think an appropriate allowance for future economic loss on a global basis is a figure of $45,000. Again I will not make any additional allowance for loss of superannuation benefits.

68. [68]
    Special damages in the sum of $192.80 were not contentious: p 11. There is no interest on the award of general damages, and interest on past economic loss is appropriately awarded at the current rate of 10 year treasury bonds: Civil Liability Act 2003 s 60.  Interest should run at that rate for half of the period since the date of the accident.  If I am reading the Reserve Bank’s website correctly, that is a rate of 3.09%.^[40]That produces interest of $3,314.  Accordingly the plaintiff’s damages are assessed as follows:

69. [69]
    This amount is however to be reduced by 20% to allow for contributory negligence. Accordingly there will be judgment that the second defendant pay the plaintiff $70,485.44 which includes $2,651.20 by way of interest.