McLean v Nominal Defendant[2012] QDC 73

DISTRICT COURT OF QUEENSLAND

1. [1]
   Shortly before 7 pm on 8 March 2009 an ambulance arrived at an address at Deception Bay, the home of the plaintiff’s sister.^[1]They found the plaintiff lying on the lawn inside the front fence, apparently in some distress.  He also appeared to be adversely affected by alcohol:  p 9.  He was taken to the Nambour Hospital, where he was found to be suffering from fractures in both feet:  Exhibit 4.  The plaintiff claims that he suffered those injuries through being struck, as he was starting to cross a road beside a roundabout in Deception Bay, by a motor vehicle which did not stop after the accident and which he is unable to identify.  Liability and quantum are both in issue.

2. [2]
   The plaintiff’s version was that the previous night he had been drinking with a friend of his who lived about a kilometre away from his home at Deception Bay:  p 8.  He spent the night at the friend’s house, and the next morning, after some additional drinking, they walked back to his house, collected a lawn mower and brought it to the friend’s house, where they proceeded to mow the lawn:  p 9.  They then walked to the local tavern about half a kilometre away where they drank together until the friend left, and the plaintiff decided to go to his sister’s place; he did not want to go home because he had had trouble with his nephew:  p 10.

3. [3]
   The plaintiff left the tavern and walked along the west side of Bay Avenue^[2]to the intersection with Maine Terrace, where there is a roundabout:  p 11.  He followed the path to the crossing point on Maine Terrace, which is just to the west of the roundabout:  p 12, p 25.  He said he looked before crossing, but did not see any cars coming:  p 13.  He then started to walk across, when a car came quickly around the corner from Bay Avenue.  He tried to jump back but it hit him.  He said the car hit his right foot, he heard glass breaking, which he assumes was the left headlight, and he spun around and landed on the road:  p 14.  The car did not stop; all he can say about it is that he thinks that it was a white VN Commodore.

4. [4]
   The plaintiff had pain in both feet, it was very painful when he attempted to stand up, and his feet collapsed under him: p 19.  He said he was found by an elderly couple who took him in the back of their car to his sister’s place, where he ended up lying on the front lawn.  He was apparently initially reluctant to go to hospital, and sought and obtained some beer to drink, but eventually his sister insisted that he go and apparently she called the ambulance.  The elderly couple were not identified, and neither they nor his sister were called as witnesses.

Credibility of plaintiff

5. [5]
   It was submitted for the defendant that the plaintiff’s evidence was unreliable, so that his account of the collision could not be accepted. It was submitted that he had given various different accounts of what had happened to different people. The form completed by one of the paramedics^[3]said the plaintiff stated he was hit by a car travelling at approximately 70-80 kph, and was thrown over the vehicle.^[4]The plaintiff complained of pain in both feet:  p 23.  They did not notice any other injuries:  p 10.  He was not coherent, and stated he had consumed a good deal of alcohol.  One of the paramedics added that he had said he had been involved in a car accident but it was not at that location:  p 8.  He was, however, unable to explain where it occurred or how he got to the house:  p 9.  At another point one said that the plaintiff had told him that he had been driven to the house where he was by other people:  p 14.  He thought the information came from the plaintiff personally rather than the others who were there:  p 16.

6. [6]
   The paramedics expressed the opinion that he appeared to be intoxicated, since he smelt of alcohol, he was difficult to manage as a patient and he had stated he had been consuming alcohol.^[5]He did not, however, drink any alcohol while they were there.  He appeared to be somewhat emotional and a little irrational:  p 9.  He was insisting that he was able to walk when in fact he could not:  p 14.  The other paramedic who attended recalled that the plaintiff appeared coherent, though a bit rambly, and uncooperative, for example he declined a cervical collar:  p 19.  That paramedic could not explain an assertion in his statement that the plaintiff could not give a consistent account of the incident:  p 21.  His statement was prepared on the basis of his recollection of the incident on 23 August 2009:  p 22.

7. [7]
   The Redcliffe Hospital notes^[6]record the plaintiff’s complaining about being hit by a car which did not stop:  “Car doing about 80 kph and was knocked over landed on pavement woke up and took a lift to his sister’s place, where he collapsed as unable to weight bear.”  News of the accident was passed to the police, and at about 10.30 pm that day he was interviewed by a police officer.  He appeared to the police officer to be moderately intoxicated, but knew what he was saying:  p 28.  The officer gave his version, based on what he had noted in his notebook, as follows:^[7]

“I was walking from the bottle shop at Deception Bay shopping centre and making my way back to my sister’s house.  I got to the roundabout at Maine Terrace and Bay Avenue, I was hit by a white Holden sedan.  I was laying on the road for a while when a dog jumped out on me and bit me in the shoulder.  A couple of people then came over and helped me and took me to my sister’s house.  I then went to the hospital and called police.”

8. [8]
   Later, when it was getting light before he finished his shift, the officer inspected the area but did not find any debris: p 28.  About two hours after he spoke to the plaintiff he used the notes as a basis for an entry in the QPS computer system:  p 29.  This was done at 2.51 am:  p 30.  There was also a diagram which the police officer prepared later using a computer:  p 30.  The police officer’s partner had also noted in an activity log^[8]carried around with them that night in the car that “victim remembers being bitten by a German Shepherd after being hit.”

9. [9]
   There was also in the report a description of the accident which was a version composed by the police officer, which he described as a summary: p 30.  There are differences between the summary and what was recorded by the police officer as what the plaintiff actually said.  It does not seem to me that there is any significant difference between what the plaintiff said to me in the witness box and what he actually said to the police officer, except that the account to the police officer included the reference to being bitten by a dog.  The plaintiff did not refer to this in evidence-in-chief, although when cross‑examined he said that he did recall being bitten by a dog while lying there after the accident:  p 40.

10. [10]
    The plaintiff was cross‑examined by reference to the police officer’s summary, which included aspects which seem to have been based on the police officer’s reconstruction (or imagination) rather than anything actually said by the plaintiff at the time.  This led counsel for the defendant to put that he had at one point said that he was struck from behind by the vehicle at a time when he was walking on the left-hand side of the carriageway of Bay Avenue towards the roundabout.^[9]That may have been what the police officer thought the plaintiff meant by what he said, but that is not what the plaintiff actually said.^[10]

11. [11]
    Counsel for the defendant also referred to what were said to be different versions of the circumstances of the accident in the reports from various doctors, which were relied on as revealing some inconsistencies. I do not intend to go through these in detail; in no case was the inconsistency of any real significance, and in my experience, whatever expertise they might otherwise have, medical specialists are generally not very reliable at obtaining and recording accurate factual histories of matters of this nature.^[11]I do not think that there is any real inconsistency between the plaintiff’s evidence and the statement of claim, the notice of accident Exhibit 26 or the additional information from Exhibit 27.^[12]

12. [12]
    The friend with whom the plaintiff had spent the earlier part of the day was not called to give evidence, but a statement obtained from him in May 2010 was put in evidence: Exhibit 36. He did not claim to have been present at the accident, but gave a version of the events earlier in the day which was inconsistent with the version given by the plaintiff in the witness box. He confirmed that the plaintiff had spent the previous night at his house, because he was then in conflict with his nephew; para 8.  He also agreed that they went to the tavern together when it opened, and drank together until lunchtime; he said the plaintiff drank more than he did, so that the plaintiff was definitely drunk by the time they left:  para 12.  They set off to return to the friend’s home, carrying some cans of alcohol, though the plaintiff was staggering a lot.  At one point the plaintiff had tried to pat a German Shepherd dog which was inside a fence, and which reacted by biting him on the upper arm, which upset the plaintiff.  After this, there was some disagreement between them, and the friend went home leaving the plaintiff walking towards the shops, and carrying a number of cans of mixed spirits.  The statement also went on to give information about the extent to which the plaintiff was drinking generally up to that time.  After the plaintiff came out of hospital he called to see the friend, and they had a falling out; the friend was obviously no longer his friend at the time when he made the statement.

13. [13]
    In view of that falling out and bearing in mind that he was not available for cross‑examination, I am wary about the reliability of his statement.  It does, however, provide a more plausible explanation for the incident with the dog than the account given by the plaintiff, that a dog just came along and bit him while he was lying on the ground after the accident.  It is I think fairly clear from all the evidence that the plaintiff was intoxicated that afternoon, and that may well have led him to conflate his recollection of the accident and his recollection of being bitten by the dog.  The fact that the same breed of dog is mentioned in the friend’s statement and in a note of what was told to the police by the plaintiff on the night of the incident suggests that there really was an incident with such a dog.

14. [14]
    It does not follow, however, that the plaintiff’s evidence is completely unreliable. There is the consideration that if the plaintiff had been at the tavern or in the vicinity of the shops and had been walking towards his sister’s place, he would have followed the path he described, which would have brought him to the roundabout. The roundabout seems to be the only one in the vicinity,^[13]and in circumstances where the plaintiff attributed his accident to the roundabout from a very early stage, I think that is likely to be reliable.  I acknowledge that it is appropriate to be cautious about the evidence of a plaintiff in a matter of this nature,^[14]but the one piece of evidence which does support his account is the evidence of his injuries.  He undoubtedly suffered some injury, fractures to each of the feet, worse in the case of the right foot, and in circumstances where he was wearing something on his feet, some force would necessarily have been involved.

15. [15]
    There has been I think some distraction caused by the estimate given by the plaintiff initially of the speed of the vehicle that struck him. It is very difficult for a pedestrian to estimate the speed of an approaching motor vehicle, particularly one which is only seen for a very short time,^[15]and no doubt the plaintiff’s intoxication would have further reduced his ability to make a reliable estimate.  From the photos of the roundabout, it is obvious enough that a Commodore, or indeed any other ordinary sedan, would not have been turning from Bay Avenue into Maine Terrace at anything remotely like 70 kph, and it is not to the point that the plaintiff’s injuries were not as serious as one would have expected if he had have been struck by a vehicle travelling at that speed or something like it.  But it is difficult to see how he could receive the injuries he did receive in any other way.

16. [16]
    The orthopaedic surgeons were cross-examined as to whether the injuries were consistent with the plaintiff’s feet being run over by the tyre or tyres of a vehicle, and that may well be the case.^[16]However, if his feet were run over in this way, the fact that he had injuries to both feet would indicate that the feet must have been essentially side by side at the time they were run over.  In other words, he must have been standing still at that time.  Had he been walking forward one foot might have been run over, but both would have been improbable.  That would be inconsistent with his having walked out in front of an approaching vehicle, the driver of which had assumed that the plaintiff had seen him and was going to wait until he had passed.  At the very least, therefore, the plaintiff was aware of the approaching vehicle for long enough that, even in his intoxicated state, he was able to come to a halt.  On the other hand, the mechanism suggested by the plaintiff, that he had stopped and attempted to jump back when he was struck on the feet, would account for the injuries to both feet, and the injury to the right foot being the more serious, and this indicates that the plaintiff had been aware of the vehicle for long enough that, even in his intoxicated state, he had some opportunity to react to its approach.

17. [17]
    Ultimately, it seems to me that the only plausible explanation for the injuries in fact suffered are the two that I have indicated, and they provide therefore some corroboration for the proposition that the plaintiff was struck by a vehicle. Obviously he cannot identify that vehicle. Given that he has consistently attributed the accident to that roundabout from a very early stage, I am prepared to find on the balance of probabilities that that is how and where he was struck.

18. [18]
    The absence of debris from the supposedly damaged left headlight is not I think significant. The glass might have been broken without falling out, or it may be that the police officer was concentrating his search in Bay Avenue where he had thought the accident happened, rather than in Maine Terrace where any debris would in fact have been located.  At most, there would not have been much debris.  Notwithstanding my caution about the reliability of the plaintiff’s evidence for the reasons to which I have referred, I am prepared to find that the accident did happen as a result of his being struck by a motor vehicle approaching him from his right while turning left from Bay Avenue into Maine Terrace while the plaintiff was attempting to cross Maine Terrace at the point where provision is made for pedestrians to cross immediately to the west of the roundabout, as he claimed.

Analysis

19. [19]
    If that is what occurred, there is no difficulty in concluding that the collision occurred through the negligence of the driver of the unidentified vehicle. As I have indicated, this is not a case where the plaintiff has simply walked into a vehicle, the approach of which he did not notice because of his intoxicated state. In any case, there was nothing to obstruct the view of him by the driver approaching the roundabout from at least when he reached the end of the traffic island in Bay Avenue in the approach to the roundabout.^[17]I expect that driver was focusing his attention to the right to see if there were vehicles to which he had to give way, but the possibility of pedestrians seeking to cross the road immediately to the west of the roundabout was certainly foreseeable^[18]and some attention would have been given to that by a reasonably careful driver.

20. [20]
    In the circumstances, the fact that the driver struck the plaintiff demonstrates that there was a failure to keep a sufficient look out for the possibility of pedestrians crossing the road, which is a specific feature of a general failure to be sufficiently aware of what was going on on the road in front of him. Though I do not accept that he was travelling at anything like 70 kph, he may well have been travelling at more than a safe speed in the circumstances.  The proposition that, if the accident had happened in this way, the driver of the unidentified vehicle was negligent, was not really contested on behalf of the defendant, and I so find.

Contributory negligence

21. [21]
    The next issue is contributory negligence. The defendant’s argument in relation to contributory negligence was based on the Civil Liability Act 2003 s 47, which requires a presumption of contributory negligence if a person who suffered harm was intoxicated at the time of the breach of duty giving rise to a claim for damages, and contributory negligence was alleged by the defendant.  That applies, but a plaintiff can rebut the presumption in the manner allowed by subsection (3)(a), by establishing on the balance of probabilities that the intoxication did not contribute to the breach of duty.  This focuses on the failure of the driver of the unidentified vehicle to exercise reasonable care in the circumstances.

22. [22]
    That failure, as I have indicated, was essentially one of failure to keep a sufficient lookout to be aware of the presence of the plaintiff as he approached and negotiated the roundabout. Had he been travelling at a reasonable speed for that exercise, he ought to have been able to stop quite quickly, or, with even less warning of the presence of the plaintiff, to swerve slightly to the right so as to avoid him. In the circumstances, he must have only just struck the plaintiff, so not much of a swerve would have been necessary. But essentially the breach of duty was in failing to be aware either at all or in sufficient time before the accident of the presence of the plaintiff on the road. I do not accept that the plaintiff’s intoxication contributed to that breach of duty. The lack of a proper lookout on the part of the driver of the unidentified vehicle obviously had nothing to do with the intoxication or otherwise of the plaintiff. The defendant’s argument treated the subsection as if it required the plaintiff to prove that the intoxication did not contribute to the injury, but that is not what the section says.^[19]

23. [23]
    No basis for contributory negligence other than pursuant to s 47 of the Act was pleaded or relied on  in submissions on behalf of the defendant, until the point was raised briefly in reply by counsel for the defendant.  However, no application was made for leave to amend the defence, and I do not consider that the defendant should be entitled to raise the issue for the first time at that point.  I should, however, say something on a precautionary basis about contributory negligence at common law.  It may be accepted that as a result of the plaintiff’s intoxication his perceptions of the indications of the approach of the motor vehicle, particularly the sound of it, would have been diminished, and his reaction time would have been increased.  In those circumstances, it is I think quite likely that had he not been intoxicated he would have noticed the approach of the vehicle sooner, which would have given him more time to get out of its way.

24. [24]
    In these circumstances, had the matter been litigated on the basis of common law contributory negligence, I would have found there was contributory negligence on the part of the plaintiff, essentially in also failing to keep a proper lookout for the approach of a vehicle and failing to attempt to get out of the way when it appeared not to be slowing down or stopping to avoid him. That would give rise to an issue about apportionment. It is well established that because of the capacity of a motor vehicle to cause injury to a pedestrian, and because it is reasonably foreseeable that pedestrians will cross roads from time to time, there is a greater responsibility on a motorist to take care to avoid colliding with pedestrians, particularly at places where the layout of the road suggests that pedestrians are likely to be going to cross, as was the case here. If there was contributory negligence because of the plaintiff’s intoxication, I would nevertheless apportion the bulk of the responsibility for the collision to the driver of the unidentified vehicle, and only 20% to the plaintiff.

Quantum

25. [25]
    The plaintiff would have been in a good deal of pain after the accident, particularly because until he arrived at the hospital he did not receive any pain relief.^[20]It may be that the alcohol had some deadening effect on the pain, though it did have the consequence that the paramedics did not administer pain relief to him.  He was taken to hospital where his feet were x‑rayed and immobilised in special boots, after which he was discharged on crutches.  He would have considerable difficulty in walking in circumstances where both feet had been injured, and he said that he normally got around by crawling for a time after the accident:  p 20.  He found the attempts the hospital made to mobilise him on crutches very painful:  p 20.  He said he still gets a lot of pain in his feet, particularly in the right foot:  p 22.  In addition, he has become depressed and has trouble sleeping since this incident:  p 23.

26. [26]
    The plaintiff was seen by Dr Pentis, an orthopaedic surgeon, on 9 March 2010, one year after the accident, for the purposes of a report:  Exhibit 7.  At that stage there was some continuing pain, particularly in the right foot, and some difficulty in negotiating slopes, sand, uneven ground and stairs.  It was difficult to squat or kneel.  The plaintiff could not run, jump, jog or walk any great distance, or the feet would swell and tend to give way.  He had at times sharp pains.  On examination, range of movement of both ankles was equivocal.  There was difficulty in standing on heels and toes and difficulty in squatting.  There was no gross wasting of the calves.  After further x‑rays requested by Dr Pentis were carried out,^[21]in a further report (Exhibit 9) he expressed the opinion that the plaintiff had sustained fractures and a crush injury to his foot on the right and left side, and soft tissue injuries to the capsular structures of the ankle, which had caused him pain and inconvenience and left him with some residual weakness.  He thought operative treatment was not indicated, and the plaintiff would be left with permanent impairment, which would adversely affect his ability to work, or to do any strenuous activity.  Dr Pentis attributed a whole person impairment of 6% to each foot.

27. [27]
    In oral evidence Dr Pentis agreed that in time the plaintiff should improve:  p 94.  The description of the examination by Dr Steadman at face value would indicate that the plaintiff had improved a lot since Dr Pentis saw him:  p 95.  He did, however, consider that because of the fractures and because of the soft tissue damage there would be some permanent impairment.  Dr Pentis said that the injury could have been caused by a car coming at speed from the right colliding with the foot, or by the foot being run over:  p 96.  Dr Pentis had thought at the time of the examination that the car had actually run over the right foot, but he said the plaintiff was vague about what had happened:  p 99.  He added that crush injuries do give long term problems.  He would expect with an injury of this nature that wearing joggers would be the most comfortable, but even then he will probably have some pain from this injury:  p 97.  In theory the injury could be treated by fusing joints which were painful, but that can cause other problems and he did not think the plaintiff was a candidate for fusion, at least at this stage:  p 97.

28. [28]
    The plaintiff was examined on 19 July 2010 by Professor Steadman, an orthopaedic surgeon, for the purposes of a report to the defendant’s solicitor:  Exhibit 14.  According to Professor Steadman there were no abnormalities detected on examination.  He expressed the view that there was no clinical evidence of any restriction, and no obvious reason to support the apparent high level of subjective pain reported by the plaintiff.  In his view there was no applicable impairment.

29. [29]
    In cross-examination Dr Steadman was told of the results of a CT scan of the plaintiff’s injury on 11 March 2009,^[22]which he said he had not known before; he said that report (which was read to him) did indicate a more significant injury:  p 48.^[23]He said that the plaintiff did not necessarily fit into any of the categories in the AMA guide, but that doctors were allowed to diverge from the guide if they thought there was an injury that the guide was not satisfactory in assessing, and with the advantage of this additional information provided by the CT scan he would agree that it was reasonable that the plaintiff would have some impairment in the right foot because of that injury in the short or long term:  p 51.

30. [30]
    This was a significant concession, but it still strikes me as strange that Dr Steadman’s results on examination were so different from those obtained by Dr Pentis.  I suspect that the explanation is that Dr Steadman was largely disregarding the plaintiff’s complaints of pain, because he was suspicious of them because he did not regard it was a serious injury, or possibly because they are subjective and therefore in his view not a reliable indication of impairment.  It seems to me that if the plaintiff is suffering pain from the injuries, that indicates that there is some continuing problem, and that there is some real impairment, that is diminution of the functional capacity, in the feet.  Bearing that in mind and in view of the fact that Dr Steadman acknowledged that the injury was worse than he was assuming it to have been at the time of his examination and report, I prefer the evidence of Dr Pentis.

31. [31]
    The plaintiff was seen by Mr Hoey, an occupational therapist, on 25 February 2010 for the purposes of a report:  Exhibit 11.  There was a further examination on 5 October 2011 which produced a further report:  Exhibit 12.  Again, the plaintiff complained of pain in both feet.  On examination there was no obvious swelling or deformity of the feet, he had difficulty standing on one foot and heel-toe stand was particularly difficult.  His gait was abnormal, and he complained that standing or walking for long periods, or traversing slopes, aggravated his pain.  He could not crouch properly.  Mr Hoey concluded that there was demonstrated capacity for occupations only in the sedentary and light range, and there was reduced capacity for some of these because of his reduced standing and walking tolerances.  He considered that the plaintiff was restricted in his access to the labour market by his continuing symptoms, as well as by the fact that by virtue of his education, work experience and training, he was reasonably qualified only for occupations at skill level 4 or 5 of the Australian qualifications framework.  The history of injury, criminal history with a period of incarceration, and history of alcoholism were also going to make it more difficult for him to obtain employment.  Overall, as a result of his injury, his occupational restrictions would make him significantly more vulnerable in the open labour market.  He would require some assistance in doing heavier work around the home, of the order of one or two hours per week.

32. [32]
    The conclusions from the second report are much the same; Mr Hoey thought that the practical effect of the injuries was to prevent the plaintiff from doing the sort of limited physical work that he was doing at times prior to the injury.  He concluded that “pragmatically speaking, his best case work outlook would be sporadic casual employment with empathetic employers looking for an extra set of hands when they are busy.  This man’s complex interplay of physical, psychiatric and pre‑existing social and medical factors makes him a severely disadvantaged job seeker.”

33. [33]
    The plaintiff was seen by Dr Byth, a psychiatrist, on 31 May 2010 for the purposes of a report:  Exhibit 10.  He diagnosed the plaintiff as suffering from post-traumatic stress disorder, with symptoms being moderately severe, and depressive symptoms more severe than usually seen with PTSD, warranting the additional diagnosis of adjustment disorder with depressed mood.  Dr Byth thought the plaintiff would also qualify for a diagnosis of substance abuse disorder.  He noted that the plaintiff had been treated with antidepressants since the motor vehicle accident, and as a result of a detoxification programme he had seen a psychiatrist who had added a tranquiliser so that he was currently taking both, along with an anti-craving drug and Panadeine Forte for pain control.

34. [34]
    Dr Byth said that the plaintiff appeared to be in pain in his lower legs during the interview,^[24]and that his thought content involved a preoccupation with the pain in his legs.  Dr Byth suggested that his condition might require some additional medication in view of the persistence of symptoms despite the current treatment, and he recommended some additional psychiatric treatment over a period of two years at the cost of about $6,000.  He thought that even after the two years’ treatment for post traumatic stress disorder he would require further treatment for alcoholism and recurring bouts of depression:  p 57.  He did not expect the condition was likely to deteriorate or require hospitalisation.  He did not expect that the plaintiff would obtain full remission with treatment, particularly because of the continuing problems with the feet, and the PTSD and depression would remain chronic.  He expressed the view that his psychological state would impair his ability to work.  He calculated a permanent impairment assessment as a result of the motor vehicle accident using the PIRS system at 16%.^[25]

35. [35]
    After he prepared his report Dr Byth was provided with additional material as to the plaintiff’s medical history, which revealed more extensive treatment for depression and for alcoholism in the past than he had realised from the history he had been given:  p 56.  There had been regular hospitalisations for detoxification as part of a longstanding history of alcohol dependence,^[26]which would have compromised his employability in any event.  He still had the impression that the problems were not as constant as they had been since the motor vehicle accident in 2009.  It did appear that in his history there were periods when the longstanding depression had been stirred up, and that alcohol withdrawal or going into prison could aggravate the chronic depression:  p 64.  The effect of the motor vehicle accident was to worsen his condition because of the burden of pain and the post traumatic stress disorder on top of his previous problems.  He did not qualify the PIRS assessment that he had made in any significant way as a result of this additional material:  p 64.

36. [36]
    The basic difference between Dr Byth and the defendant’s psychiatrist was that Dr Byth thought that prior to the car accident the chronic fluctuating depression was mild, whereas Dr Leong thought it was moderately severe:  p 60.  Dr Byth agreed that the pre‑existing problems would affect his employability in any event:  p 62.  He said that a person could still develop post traumatic stress disorder even though intoxicated, and that a person who was drinking consistently would be very tolerant to the effects of alcohol:  p 59.  Dr Byth said that in his experience, even persons moderately intoxicated will be affected if the nature of the traumatic event was sufficiently disturbing:  p 63.  He believed that that would occur even with heavy amounts of intoxication:  p 64.

37. [37]
    The plaintiff was seen by Dr Leong, a psychiatrist, on 19 August 2010 for the purposes of a report:  Exhibit 13.  Dr Leong diagnosed an exacerbation of pre‑existing alcohol abuse and dependence and chronic dysthymia, noting there were anti-social personality traits present as well.  He did not diagnose post traumatic stress disorder.  This was based on the proposition that the plaintiff was heavily intoxicated at the time of the accident and in such a state he would not be able fully to comprehend and appreciate the extent of the injuries or the nature of the accident so as to develop full blown post traumatic stress disorder.  He assessed the applicant’s post accident PIRS impairment at 17%, but considered that he also had a pre‑existing PIRS impairment of 17%, so that his position had not become any worse as a result of the accident.^[27]He accepted, however, under cross‑examination that, if the plaintiff did feel shocked and fearful of being killed and fairly shaken up when he was in fact hit by the car, notwithstanding the intoxication he did suffer feelings of great fear at the time:  p 71.  Dr Leong conceded that the plaintiff had some post traumatic stress symptoms, but said he did not fulfil all the criteria:  p 73.  It also appears that his approach was influenced by a lack of confidence in the reporting of the plaintiff’s symptoms, he seemed to adopt the approach that one should not believe what the plaintiff said:  p 73. 

38. [38]
    I have no hesitation in rejecting Dr Leong’s thesis.  I suppose a person could be so intoxicated that he would not appreciate that he had been struck by a car travelling at some speed, and that the consequences for him could have been much worse, but I do not accept that the plaintiff had anything like that level of intoxication at the time.  When he was seen later by the paramedics he recorded a Glasgow coma scale of 15 (a normal reading),^[28]and they were able to obtain some account from him although he was uncooperative to some extent.  When he was seen by the police officer in the hospital a few hours later, that officer, who no doubt has experience in dealing with intoxicated persons, thought that the plaintiff knew what he was saying and that he was orientated and was able to understand what was asked of him:  p 28.  On the whole, I find Dr Byth’s evidence in relation to his experience of people suffering post traumatic stress disorder, notwithstanding intoxication, and his opinions on the subject, preferable.

39. [39]
    There is also the consideration that, even if the plaintiff was too intoxicated to realise the significance of what had happened to him at the moment of the accident, presumably while he was in hospital he would have dried out to the point where he would have been sober enough to appreciate its significance. There are cases where, for example, a person is a victim of a sexual offence while insensible, because of intoxication or otherwise, but suffers post traumatic stress disorder subsequently upon finding out that the offence has occurred.

40. [40]
    Indeed, I was generally unimpressed with Dr Leong’s evidence.  For example, at one point he noted that after the accident the plaintiff had become anxious and hypervigilant in traffic, but in dealing with the travel aspect of impairment for the PIRS assessment he did not make any allowance for this:  p 77.  His approach to the PIRS assessment also seemed to assume that just before the accident the plaintiff’s level of psychiatric impairment was as bad as it had ever been, notwithstanding that he accepted under cross-examination that many of the current problems which he identified himself in his report had not been present prior to the accident, or at least that the plaintiff had indicated that they had not been present: p 71-73.  There is also the consideration that Dr Leong said himself that the accident had exacerbated or worsened the longstanding depression and mood disturbance (p 75), under which circumstances it would be surprising if his PIRS rating before the accident was the same as his PIRS rating after the accident.

41. [41]
    It also seemed to me that Dr Leong’s approach to the PIRS assessment was not in accordance with the requirements in the regulation.  In circumstances where the plaintiff’s condition had fluctuated prior to the accident, what was relevant was to compare his stable post-action state to his state prior, that is just prior to the accident, not to the worst that it had been at any time prior to the accident, or even its average state prior to the accident.^[29]Whether as a result of the accident the plaintiff suffered a new psychiatric condition, or suffered an aggravation of his previous psychiatric problems, or both, in order to determine the extent to which he was made worse by the accident, it is necessary to compare his state after the accident with his state immediately before the accident, unless there is evidence to show that even if the accident had not happened his state would have got worse anyway.  There was no attempt to prove that on the part of the defendant.

42. [42]
    What the history reveals is that there were longstanding problems of alcohol abuse and depression which had worsened at times, usually as a result, apparently, of some specific aggravating event, but in time the effect of those aggravations had worn off. In those circumstances, the appropriate approach is to compare his post accident state with his pre‑accident state, but to make some allowance along with lines of what used to be referred to as the vicissitudes of life, and is now described as the risk that, apart form the accident, some other event might have occurred which would have produced an aggravation in the psychiatric state anyway.  That, however, is a factor which is taken into account after the PIRS assessment.

43. [43]
    In circumstances where I reject Dr Leong’s approach to a possible diagnosis of post traumatic stress disorder, I cannot accept his evidence as to the psychiatric consequences of the injury.  There was little difference in the PIRS assessment post accident;^[30]the main difference was in the pre‑accident assessment, and in respect of that for the reasons I have given I prefer that of Dr Byth.  I therefore accept Dr Byth’s PIRS assessment, of 16%.

44. [44]
    The approach adopted by defence counsel seemed to be to pick out what might be described as the highlights of the plaintiff’s psychiatric history, on the basis that at some time in the past there were certain particular symptoms, and then treat the plaintiff as though he had all of those symptoms, either the whole time prior to the accident, or immediately prior to the accident. That was not what was revealed by the evidence. What was revealed was rather that there was long term chronic substance abuse and long term chronic depression with aggravations from time to time as a result of particular unpleasant experiences in his life (such as the death of his mother, separation from his wife, being sent to prison). It is unhelpful to say that at some point in the past his psychiatric state was bad, unless the evidence establishes that it was constantly bad up to the accident, and that it had not been made any worse by the accident. That is certainly not the evidence in this case.

45. [45]
    With regard to the plaintiff’s psychiatric history, I was provided with a mass of documents, mostly medical records, in four volumes which were put in evidence by consent but tendered on behalf of the defendant: Exhibit 15.  The documents appear to be in no particular order except that to some extent groups of documents within particular files relate to the same incident or event.  I was provided with a schedule as part of the submissions in writing, but it suffers from the difficulty that it does not separate out information relevant to specific purposes, nor does it summarise the relevant information in chronological order.  Though I strongly suspect that most of this material is of no relevance or assistance and I have certainly not read through all of Exhibit 15, I will summarise very briefly the references to psychiatric problems mentioned in that schedule, in chronological order, as follows:

General damages

46. [46]
    For the purposes of the Civil Liability Regulation the dominant injury was the serious mental disorder constituted by the post traumatic stress disorder, Item 11 with an ISV range of 11-44.  A PIRS assessment of 16% would put the condition towards the middle of this range, but there were also physical injuries to the right and left feet, each of which fell within Item 149 which has an ISV range of 4-8.  The assessment in respect of all of the injuries can be comfortably accommodated within the range for Item 11, even allowing for the fact that the plaintiff does seem to have suffered a good deal of pain, which should be taken into account.^[31]In all the circumstances, I will allow an ISV of 25, which means an award of general damages of $35,000.  Interest is not payable on this:  Civil Liability Act 2003 s 60.

Economic loss

47. [47]
    I accept that since the accident the plaintiff has not worked except for a couple of hours’ trial as a labourer, which he found too painful to continue.^[32]The difficulty in the present case is identifying what the plaintiff’s pre‑accident earning capacity was.  It is clear enough that it was quite limited, because of the plaintiff’s chronic alcoholism, and to a lesser extent because there have been various injuries or illnesses in the past which have interfered with his work.  On the other hand, the evidence does suggest that there was some work being undertaken by the plaintiff on an intermittent casual basis, particularly in more recent years in the area of tree lopping.  The difficulty is that, because of the nature of the work and because of the plaintiff’s poor record keeping in view of his alcoholism, it is very difficult for the plaintiff to show just what his pre‑accident earning capacity was by reference to his actual earnings achieved in recent years.  It is, however, I think fairly clear that in terms of past economic loss, to the extent that the plaintiff had some earning capacity prior to the accident, it has been largely destroyed by it.

48. [48]
    Another complicating feature is that the plaintiff has in the past spent some time in prison. A criminal history put in evidence (Exhibit 31) shows that between January 2005 and July 2009 he was sentenced to various head sentences totalling four years and five and a half months, though it seems that most of these were suspended wholly or in part, and the period of imprisonment actually served would have been between 15½ months and 18½ months, depending on when he received parole in relation to a sentence of six months’ imprisonment where no special order was made.^[33]This would have prevented him from working for some period, though on the whole not very much.  It may be that his criminal history would have diminished his working capacity anyway, though I suspect it was in practice much less significant than his alcoholism in its adverse impact on his earning capacity.

Plaintiff’s employment history

49. [49]
    The plaintiff was born on 31 August 1973 (p 7), so he is now 39.  He has been on a disability support pension since December 2010:  p 8.  He did not in evidence-in-chief give much detail about his pre‑accident employment  He said that he had run out of work at Chipmunks Tree Services just before Christmas, and there was not much work around until after the holiday period:  p 23.  Prior to the accident he did mostly tree lopping^[34]but also some house stumping work or other labouring work.^[35]He said that in 2007 and in July 2008 he was working for a Matt Hooper restumping houses, and in 2007 he had also done concreting or labouring work for a Mr Livingstone:  p 25.  In 2006 he was working for a house removal firm doing restumping, although he could not recall another person mentioned in Centrelink records.  He said he would declare his income to Centrelink when he worked:  p 25.

50. [50]
    The Centrelink records suggest he was paid $1,080 in the first half of 2007 by Mr Hooper, $240 in July 2008 by Mr Hooper, $1,601.84 in the first half of 2007 by Mr Livingstone, $1,470.48 in the second half of 2006 by Greensills, and $80 in June 2008 by Mr Stevens.^[36]On the other hand, the plaintiff’s payment summary information from Centrelink indicates that the Newstart Allowance was paid from 1 January to 8 March 2006, from 10 May to 20 June 2006, from 1 July to 10 October 2006,^[37]from 12 January to 28 June 2007, from 1 July to 9 August 2007, from 31 October 2007 to 17 June 2008, from 1 July to 13 August 2008,^[38]from 27 November 2008 to 17 June 2009, and from 1 July 2009 to 26 March 2010.^[39]These figures do not suggest very much in the way of employment in the few years leading up to the accident, but there is the possibility that the plaintiff was not reporting all of his earnings to Centrelink; he did not strike me as the sort of person who would be assiduous about this.  The fact remains, however, that he has no better records, and there is no independent evidence from the former employers.  It was not suggested that he had worked after the relevant incident.

51. [51]
    In these circumstances, it is inevitable that any assessment of the plaintiff’s pre‑accident earning capacity is going to be quite modest.  Counsel for the plaintiff sought only $10,000, for a period of then two and a half years; it is now over three years.  As counsel for the defendant pointed out, there was a period of some three and a half months in late 2008 when the plaintiff was in prison.  A job capacity assessment report prepared for Centrelink early in 2009^[40]referred to a problem with alcohol dependence and that he had spent five days in hospital in connection with this.  There was reference to the plaintiff’s having been offered work as a tree lopper but had been unable to take on this work because he was unable to stay sober.  He was seen as having a “baseline” capacity for work of 30 plus hours per week in the labouring and landscaping area.  The plaintiff had completed two programmes designed to reduce his alcohol dependence without success, and did not appear motivated to try again.  He had expressed a desire to return to tree lopping, at least for two days a week, though this was difficult because of his alcohol dependence and the fact that his equipment was stolen while he was in prison.  The assessment did not suggest that at that time there were any physical conditions which were impacting on the plaintiff’s ability to work.

52. [52]
    There was, however, material indicating that there had previously been such conditions. There were references in corrective services records to prior fractures of the lower back and to chest pains.^[41]It does appear that for the period December-January 2009 the plaintiff was in the Redcliffe Hospital for an alcohol-related condition, which would to some extent have impacted on his ability to work.  Counsel for the defendant submitted that if there was any past economic loss it was no more than $5,000.

53. [53]
    There is one other factor which may well have an impact on the plaintiff’s future alcoholism. One of the things that had been upsetting him for some time was that he was not able to see his four children. However, shortly before the trial he went to family mediation and worked out some orders under which he would have access to his children every second week, provided that he did not drink.^[42]The plaintiff said that his intention was not to drink so as to ensure that he would have the opportunity to have access to his children:  p 27.

54. [54]
    The plaintiff said that but for the accident he would have been able to do a tree clearing job for a business at Burpengary, which would have taken about two and a half weeks and would have earned him net $15,000: Exhibit 27, Item 36.  There was, however, no independent confirmation of the availability of this work, or the amount that it would have realised, and it seems on its face to be much more remunerative than any work the plaintiff has done in recent years.

55. [55]
    There really is no way of knowing what work the plaintiff would have done had it not been for this accident, but I think it is not difficult to conclude that he would certainly have done more work over the last three years than he in fact did because of the accident. Such earning capacity as he had and was utilising was essentially destroyed by this accident, the only difficulty being in quantifying the loss as a result. Although the plaintiff was not working much, I think that if I allow $9,000 for past economic loss, that is a very modest assessment in the circumstances. That is what I will allow. In the circumstances it will not carry a superannuation contribution because apparently the work was cash in hand. I will allow interest at 3% per annum, which for three years comes to $810.

Future economic loss

56. [56]
    There does not seem to be a prospect of much improvement in the physical problems confronting the plaintiff. Dr Byth recommended psychiatric treatment, so presumably there is some prospect of improvement in his mental health if he receives proper treatment. It is by no means clear, however, that this will improve his prospects of working. Part of the difficulty is that the plaintiff had significant problems anyway because of his ongoing alcoholism. If this continues much as it has been, the position for the future is probably much the same as the position of the past: the destruction of a very modest utilised earning capacity for the next 25-30 years. If the plaintiff would have just gone on as he was, an award for future economic loss of the order of $45,000-$50,000 would probably be appropriate, although there should perhaps be some deduction for contingencies.

57. [57]
    Counsel for the plaintiff pointed to one positive sign, the arrangement that had been put in place to improve the plaintiff’s access to his children. This gave him a strong incentive to cut down on his drinking, and also should have eased that aspect of his depression which was associated with an inability to have such access. If it had not been for the accident, this might have been the opportunity for the plaintiff to turn his life around to some extent, but there is no knowing what the likely outcome will be in the long term. The plaintiff may be able to reduce his alcohol intake with this incentive, and in that way improve his ability to cope generally, and his ability to work, so that, had it not been for the accident, his earning capacity may well have improved. This may not have been to any great extent, but it would be off a very low base. On the other hand, if this does not work the plaintiff would no doubt lose access to the children at least for some time, and in those circumstances his depression is likely to be stirred up. That would also have had an adverse effect on his working had it not been for the accident.

58. [58]
    The difficulty for my purposes is that it is impossible to know what the prospects of success are. There is no evidence which throws any light on the issue, but the plaintiff has had alcohol problems for quite a long time, and in view of that I think it would be difficult, even with this incentive, for him to reduce his alcohol consumption sufficiently to enable this to work. It is really a question of what additional amount should be allowed because of the possibility that either for some time or even in the long term, the plaintiff’s prospects would have been enhanced as a result of a reduction in alcohol consumption associated with his desire to maintain contact with his children. This is essentially impossible to quantify, but some allowance must be made for it.^[43]If the plaintiff by cutting down on his alcoholism had the opportunity to work more, and the incentive to do so because of the ability to provide more for his children, his earning capacity could have increased quite a lot, although I doubt whether he would have ever reached the stage of working full time, even in a labouring position.  But, he could have had an earning capacity of up to $20,000 per annum so long as this did have such a favourable effect on his life.

59. [59]
    The real question is, what were the prospects of this lasting for any length of time. In the circumstances, I must regard that as poor. I think in all the circumstances a realistic allowance, bearing in mind that $20,000 is probably a maximum figure rather than a figure which would definitely be achieved, is $30,000. If I allow $45,000 for economic loss otherwise and $30,000 for the loss of the opportunity of getting back on his feet in this way, that produces $75,000, which I will reduce to $70,000 to allow for the vicissitudes of life, and for the (slight) possibility that the plaintiff might find some way to make money anyway even with his physical problems. It was submitted for the plaintiff that I should allow 9% on half of this for future superannuation loss, and I think that is reasonable, which produces an amount of $3,375.

60. [60]
    The only specials proved were the Medicare refund, totalling $749.80: Exhibit 29. The plaintiff also claimed future psychiatric care in the sum of $6,000, which I consider has been proved and I will allow that as well.

Summary

61. [61]
    General damages $35,000.00

62. [62]
    There will therefore be judgment that the defendant pay the plaintiff the sum of $124,934.80, which includes $810 by way of interest. When these reasons are published I will invite submissions in relation to the appropriate order as to costs.