DISTRICT COURT OF QUEENSLAND

1. [1]
   Karen Anne Smith claims damages for personal injuries. She was injured in a motor vehicle collision on December 15, 2009. She was the driver of one of two cars which collided at a T-intersection at Rochedale, Brisbane. Both liability and quantum were in issue. 

Liability

2. [2]
   Ms Smith lived in a house about 110m from the intersection. At about 10.00AM on the day concerned (a Tuesday), she drove her car out of her driveway and onto Gardner Rd. Ms Smith gave evidence that there were then no other vehicles on her side of Gardner Rd between her car and intersection with Miles Platting Rd. She then drove the 110m along Gardner Rd up to its intersection with Miles Platting Rd. Ms Smith said that as she approached the intersection she looked at the traffic lights facing her, and they were green. She intended to turn right. She said that as she was halfway through the intersection and in the process of turning into Miles Platting Rd, she noticed that the traffic light facing her had turned to orange. At that time, a car driven by First Defendant entered the intersection from Miles Platting Rd to her right, and violently collided with her car. After the two cars came to rest, the occupants of First Defendant’s car approached Ms Smith’s car to check if the driver and the 2 passengers (her 16 year old son and 1 year old grandson) were not hurt. While they were there, First Defendant told Ms Smith that he had a green light and Ms Smith said that she had a green light which changed to amber after she went through it.  Her son gave similar evidence. 

3. [3]
   First Defendant gave evidence that he was driving at about 55 to 60km/h—the speed limit there is 60km/h—and that he saw that the traffic light facing him was green when he was about 20 to 25m away from the intersection and also immediately before the collision. First Defendant’s passenger (his work manager) said that he was using his mobile phone as they approached the intersection and did not see the colour of the traffic light facing his car until immediately after the collision—at which time it was green. 

4. [4]
   A Brisbane City Council senior traffic engineer gave evidence that the traffic lights at the intersection were operating correctly and were not faulty at the time. He explained the changing sequence of the traffic lights. Relevantly, both cars could not each have had a green or amber light at the same time. Obviously then, one of the two drivers must have driven through a red light.

5. [5]
   If Ms Smith had driven at 60km/h—that is, at 16.6m/sec—from when she left her house up to the intersection, it would have taken her about 6 seconds to travel that distance. Once allowance is made for her car’s acceleration from a standing start and later deceleration as she approached the intersection to turn right, it would have taken at least 10 seconds to have done so, in my opinion.

6. [6]
   The council senior traffic engineer also said that the traffic lights at the intersection were activated by an implanted metallic recognising pad under the road surface. Thus without a motor vehicle triggering that pad, the traffic lights facing traffic on Gardner Rd at the intersection would remain on red. He also said that once triggered, those lights would turn from red to green and remain on green for 6 seconds, before changing to amber for 5 seconds and then to red. The lights would remain on green for a longer period if additional vehicles passed over the pad.

7. [7]
   The conclusion can therefore be reached, as a matter of arithmetical logic, that because (a) it took Ms Smith at least 10 seconds to drive up to the intersection and (b) there were no vehicles on her side of the road between her car and the intersection, the traffic light facing her as she reached the intersection must have been red. Even if another motor vehicle had activated the pad and turned into Miles Platting Rd immediately before Ms Smith drove out onto Gardner Rd, the traffic light facing her could still have been on amber as she approached the intersection. Thus, on any view, that light could not have been green before Ms Smith drove into the intersection.

8. [8]
   Accordingly, I do not accept Ms Smith’s evidence or her son’s evidence that she entered the intersection on a green light. I regret to say that I found Ms Smith’s evidence less than satisfactory in a number of respects. She was coy and less than forthcoming about her traffic history and about some employment disciplinary matters. In contrast, I found First Defendant to be an impressive witness and I accept him as a witness of truth. Thus, although there is a theoretical possibility that Ms Smith entered the intersection on an amber light and not a green light—and therefore First Defendant would have been facing a red light if that were so, I accept First Defendant’s evidence that the traffic light facing him was green.

9. [9]
   I find that First Defendant was driving east along Miles Platting Rd. He approached the intersection with Gardner Rd on a green light. He was entitled to proceed through that intersection and had no reason to apprehend danger from a vehicle which might enter the intersection from his left and against a red light (see Byrnes v Snare (1986) 60 ALJR 507). Once he saw Ms Smith’s car, he braked his car and turned it to the left—but by then, the collision was unavoidable. Ms Smith’s allegations that First Defendant drove without due care and attention, or failed to keep a proper lookout or to drive with reasonable care, skill, judgment and prudence are rejected. Ms Smith has failed to prove that First Defendant was negligent in the various respects alleged. Thus she fails on the threshold question of liability.  In addition, there is no basis, in my opinion, for a finding that First Defendant was contributorily negligent to any extent. 

    Quantum

10. [10]
    Because Ms Smith’s claim fails, it is not necessary to give detailed consideration to quantum. However, some observations should be made.

11. [11]
    General damages:  Ms Smith was 41 years old at the time.  She worked as an assistant in nursing. She suffered a whiplash-type injury in the collision. It caused her intermittent left-sided cervical spine pain, which radiated into the left trapezius. She was examined by 2 orthopaedic surgeons. Dr Malcolm Wallace thought that Ms Smith had no spinal deformity but was tender to deep palpitation in the paravertebral musculature on the left-hand side and in the left trapezius; there was full range of movement in the cervical spine, in the left flexion and extension and lateral flexion and rotation to the left and right; she had normal neurological examination. Dr Wallace assessed her whole person impairment at 5% pursuant to DRE cervical category II. Dr Wallace thought that Ms Smith was capable of continuing work as an assistant nurse provided there was no repetitive heavy lifting. Taking into account her training, education and experience, Dr Wallace thought Ms Smith’s employability on the open labour market had been adversely affected. Dr Anthony Keays noted that Ms Smith reported pain in the cervical spine located to the left trapezius region.  She told Dr Keays that her symptoms were aggravated by walking, working, washing, housework, moving her arms up and about and vacuuming. At the time of examination, she was working between 22 and 38 hours per week as an assistant nurse in an aged care facility.  Ms Smith said that she took Brufen (an anti-inflammatory medication) as required, performed exercises and used a heat pack for relief. Dr Keays noted full range of motion of her cervical spine in all directions, with no radiculopathy and no neurological deficits. Dr Keays was of the opinion that Ms Smith would benefit from a self-managed exercise program and ongoing use of Brufen. He assessed her whole person impairment as 0% under DRE cervical category I. He thought that Ms Smith did not require personal or domestic assistance and was unlikely to do so in the future. He was also of the opinion that there was no restriction on her ability to work as an assistant nurse on a full-time basis. 

12. [12]
    Ms Smith said that she still experiences some intermittent neck pain and I will proceed on the basis that she does. She submits for an ISV of 10 which would result (under the Civil Liability Regulation 2003) in an award of $11,000. I would allow that amount.

13. [13]
    Economic loss:  Ms Smith took 5 days off work as a result of the injuries which she suffered in the collision. However, her income and employment records show that although she changed employers some time after the collision, she continued to work as an assistant in nursing, earning very much the same income—and on occasions, a higher income than previously.  In Allianz Australia Insurance Ltd v McCarthy [2012] QCA 312, White JA said (at [47]) that:

“Section 55(2) of the Civil Liability Act [2003] mandates that a court may only award damages if satisfied that the person injured will suffer loss of earnings.”

Her Honour added that section 55(2) did not alter the common law (see Graham v Baker (1961) 106 CLR 340, 347) that—

“An injured plaintiff recovers not merely because his or her earning capacity has been diminished but because the diminution of his or her earning capacity is or may be productive of financial loss.”

14. [14]
    The evidence before the court does not establish that Ms Smith’s injuries are or may be productive of financial loss. No amount would therefore be allowed for economic loss.

15. [15]
    Other categories: After examining the other amounts claimed, the following would be appropriate, in my opinion: (a) special damages of $2,451.63 and (b) future medical expenses for heat packs and intermittent use of Brufen of $2,000.

16. [16]
    Conclusion: If Ms Smith had succeeded on the threshold issue of liability, I would have awarded her $15,451.63 ($11,000 + $2,451.63 + $2,000). 

Disposition

17. [17]
    Ms Smith’s claim fails.  I will hear the parties as to costs.

…

HIS HONOUR:   I order Plaintiff to pay Defendants’ costs of and incidental to the action on the District Court scale, as agreed or as assessed.