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- Unreported Judgment
McConnell v Cosgrove QDC 139
DISTRICT COURT OF QUEENSLAND
McConnell v Cosgrove & Anor  QDC 139
ALLIANZ AUSTRALIA INSURANCE (ACN 000 122 850)
District Court of Queensland
30 May 2017
24, 25 and 26 May 2017
Andrews SC DCJ
Claim dismissed. Judgment for the first and second defendants against the plaintiff. Liberty to apply within 7 days on the issue of costs.
TORTS – Negligence – contributory negligence – collision between bicycle and motor car – whether intoxication – quantum of damage
Civil Liability Act 2003 section 47
Allianz Australia Insurance Ltd v Swainson  QCA 136
Lynch for the defendants
HD Lawyers for the plaintiff
McInnes Wilson Lawyers for the defendants
- The 29-year-old plaintiff was riding a bicycle at about 8.40 pm on 7 August 2015 in the left hand of 2 northbound lanes on Nudgee Road at Hendra in Brisbane. He wore dark clothes. Neither he nor and his bicycle had lights, reflectors or mirrors. He wore a cowboy hat instead of a helmet. He was riding about a metre from the left hand gutter. The first defendant, Mr Cosgrove (defendant) was driving a motor vehicle in the right hand of the 2 northbound lanes at 60 km/h, the speed limit. As the defendant was about to overtake, the plaintiff veered his bicycle to his right and he and the motor vehicle collided. The plaintiff struck the passenger side and the windscreen of the defendant’s vehicle and fell to the road. The plaintiff suffered personal injuries.
- Quantum and liability are in issue.
- The plaintiff pleaded that the defendant was negligent for, inter alia:
- Sounding his horn when he should have braked or swerved;
- Failing to leave sufficient space for the plaintiff’s bicycle as required by law or prudence;
- Failing to drive cautiously in a marked pushbike zone;
- Failing to drive cautiously where a bike lane was painted on the roadway.
- The defendant pleaded that he had no chance to avoid the accident because:
- It was 8.40pm and the plaintiff did not use a light;
- The plaintiff rode from the footpath across the path of the defendant’s Mazda leaving no chance to take evasive action.
The defendant also pleaded that the accident was caused or contributed to by the negligence of the plaintiff, particulars of which, in effect, included the two matters above and that:
- The plaintiff rode while intoxicated “within the meaning of that term in the Civil Liability Act 2003” and that intoxication materially contributed to the collision;
- The plaintiff rode without a helmet. (The lack of a helmet would ordinarily be a matter relevant to causing injury, not to causing accident, but the particular of the cause of the accident continued with the allegation that if there was any injury it was materially contributed to by the plaintiff’s failure to wear a helmet.)
- With respect to quantum, the plaintiff claims:
- Psychiatric/psychological injuries;
- Injury to his back and hips;
- Injury to his head, neck and arms;
- Injury to his legs;
- Injury to his teeth and jaw;
- ISV 20;
- Lost wages from 7 August 2015 to trial at $800.00 net per week;
- Past loss of superannuation of 9.5 per cent on that sum;
- Future loss of wages of $350.00 net per week to age 68 on 3 May 2054;
- Past and future treatment expenses of $50,000.
- The defendant denied the quantum allegations on the basis that the plaintiff did not suffer those injuries or losses.
- With respect to liability the plaintiff’s solicitor confined the liability issues to the following:
- The defendant was negligent for blowing his horn and failing to brake, stay behind and steer clear of the bicycle; or
- Failing to anticipate that the plaintiff would move from the left hand side of the road into the right hand lane because a sign on the other side of the intersection said “Form 1 Lane” or because the defendant should have otherwise reasonably anticipated that the plaintiff would veer to his right.
- With respect to quantum, the plaintiff’s solicitor, during addresses, indicated that the plaintiff made no claim for past loss of wages from 7 August 2015 to trial, no claim for past loss of superannuation and no claim for past treatment expenses. The claim for future economic loss was expressed in submissions by the plaintiff’s solicitor to be a claim for $75,000 or alternatively a lump sum from the 5 per cent tables which is the equivalent of $100 per week for 20 years discounted by 15 per cent for the vicissitudes of life. The plaintiff’s solicitor submitted that the proper ISV is 8-10. He seeks loss of superannuation of 12-14% on the future economic loss.
- The plaintiff has lived with his partner Angela Jones, for five and a half years. They have four children in their household, one of whom is the plaintiff’s biological child. Ms Jones is expecting the plaintiff’s second biological child imminently. The family lived on Nudgee Road and the plaintiff was familiar with the road between his home and the accident scene. At the date of the collision, on Nudgee Road generally, in the northbound lane running from Kingsford Smith Drive, a bicycle lane was provided intermittently but had ended by about 80 to 100 metres to the south of the accident scene. Several of the pleaded issues were abandoned. The defendant was not driving in a marked pushbike zone. There was no bikeway painted on the relevant part of the roadway. While it was correct that the plaintiff did not use a light, the defendant had seen the plaintiff from about 60 metres. While the plaintiff rode without a helmet, it was not suggested that the lack of a helmet contributed in any way to the collision or the injuries.
- Angela Jones gave evidence that: the plaintiff limited his drinking to a six pack of beer per day at around the date of the accident; that he now drinks a little more; that on Friday 7 August 2015, the plaintiff began drinking at lunch time, at noon and had about one beer per hour until 5.00pm; it would be incorrect to say that he drank from 3.00pm and had seven beers; once he finished a six pack, there would be no more beer available; before the accident the plaintiff had been fit, happy to do day to day work that he could get and he helped with the housework, hanging out the washing, taking the children to school and mowing; he does less since the accident; Ms Jones takes the children to school; wooden chairs in the kitchen hurt the plaintiff’s back now; he prefers to lie down or sit on the couch; on the day of the accident, between 5.00pm and 8.30pm, the plaintiff helped with bathing the children and preparing dinner and then he watched football; since the accident, the plaintiff still does household duties, but picks the easier jobs and takes more time.
- Mr Chris Barlow gave evidence that: he worked at a bottle shop on Nudgee Road, close to the accident scene; at about 8.45 to 9:00pm on 7 August 2015, he was working inside the shop with the door closed; he heard a loud car horn for three to five seconds; he went outside and saw the plaintiff on the footpath and a car in the middle of the street with a bicycle behind it; he had not heard the sound of glass breaking or the sound of a collision and could not say which vehicle had sounded its horn; he knew the plaintiff and would see him once a week, but Mr Barlow was not at the bottle shop every day; he committed his memory of events to writing for the first time, seven months after the accident.
- The plaintiff gave evidence that: he was born on 3 May 1986 in Maryborough; his childhood was not happy; he left school aged 12, in Grade 6; he had been in foster care, at least intermittently, from the age of six; when he was 11, his mother had drug and alcohol issues; from the ages of 12 to 15, he was in and out of youth hostels; his first job was on a dairy farm after leaving school in Grade 6; his father hanged himself 5 years ago; he always kept his children with him, implying that he retained custody of three children he had before commencing his relationship with Ms Jones; the oldest child is 9; when he confirmed that in the four financial years ending in 2012, 2013, 2014 and 2015 he was mostly unemployed and receiving Centrelink benefits, he explained that he prefers to spend time raising his children; he worked the east coast of Australia for 10 years at travelling side shows as a side show alley worker; he had worked installing granite benchtops; he did demolition work for most of his working life. I accept that evidence.
- The plaintiff initially gave evidence that his last job before the accident had been for Northside Demolition, also known as Bunney’s Demolition. The plaintiff’s income tax return for the financial year ending 30 June 2015 was consistent with his evidence and revealed earnings of $38,414 gross from Northside Demolition and $4,677 from Centrelink. The Centrelink payments were for two periods, 1 July 2014 to 30 July 2014 in the sum of $1,110 and 14 April 2015 to 30 June 2015 in the sum of $3,367. But the evidence and the details in the income tax return were incorrect because they omitted a job and understated his income. The plaintiff conceded in cross-examination that he had signed a Queensland Compulsory Third Party Insurance Additional Information Form. In it, he noted that he had been employed from 04/15 – 06/15 by Recon Demo, Brian Carrol for $1,500 per week after tax. That was inconsistent with the information in the relevant income tax return. The plaintiff accepted in his evidence that he had worked during that period to help out his mate, that he had been paid, that there was no mention of that job or income in his income tax return, that the failure to include it was something the employer would need to explain, that he did claim Centrelink benefits for that period while he was employed and that he claimed benefits while employed because he has children. He did not suggest that he was entitled to claim benefits while employed. The earnings from Recon Demolitions do not appear in the plaintiff’s Statement of Loss and Damage signed by him on 23 January 2017. When asked to explain the absence of that employment from his Statement of Loss and Damage, the plaintiff accepted that Recon Demolitions is not in his Statement of Loss and Damage “but a lot of people are not on it”.
- The plaintiff, in his Statement of Loss and Damage, claimed $2,500.00 for past physiotherapy treatment. In fact he went to 4 treatments and paid nothing for his physiotherapy treatment. The inflated claim was not satisfactorily explained by the plaintiff.
- The plaintiff’s income tax returns reveal that in the financial years ended 30 June:
- 2012, the plaintiff earned $16,587 in Centrelink benefits and $2,370 from a trust which received income from a business of Ms Jones;
- 2013, the plaintiff earned $17,287 in Centrelink benefits and $264 from Ms Jones’ trust;
- 2014, the plaintiff earned $33,500 in Centrelink benefits, $5,000 from Northside Demolitions and $216 from Ms Jones’ trust;
- 2015, $38,414 gross from Northside Demolitions, $4,677 in Centrelink benefits, an undeclared $9,000 from Reco Demolitions and on 19 December 2014 about $35,000 from his deceased father’s estate.
- The plaintiff’s evidence was that: at about 8.20pm he left home on a pushbike which had no light or reflector; he had no helmet on but wore a cowboy hat; that he entered Nudgee Road from the footpath 80m before the intersection with Flemington Road because there was a pushbike lane at that point; that he was riding close to the gutter of Nudgee Road up to the intersection of Flemington and Nudgee, that he was not even a metre from the gutter when he heard a car horn, that he turned to look over his shoulder, that he could not turn without turning his body, that he turned the bicycle at the same time, that he veered to his right, that at the point of looking over his shoulder he lost all recollection because he was sent flying in the air, that he was too dazed to remember where he landed on the road; the sound of the horn was a sudden noise that spooked him. He did not say what lane he was in at the point of impact.
- The plaintiff made some prior inconsistent statements.
- After the collision, the plaintiff accepts that he told the police:
“I was riding on the footpath after just leaving home. I was on my way to Tom’s Confectionary Warehouse. I came to the intersection of Flemington Street and decided to go out onto the road to ride rather than the footpath. Next thing I know, I’ve been hit by a car. It hit me from behind. I have been knocked off the rear of my bike onto the bonnet of the car. My leg and hip have hit the windscreen and then I’ve fallen off the roof onto the road, hitting my head. I was a bit out of it, but got up and started walking to try and get my bearings back. The driver of the car approached me and called an ambulance.”
That version to police differs in two material ways from the plaintiff’s evidence. It omits any mention of a car sounding its horn for three to four seconds. In his evidence the plaintiff asserted that: he did state to the police that a car sounded its horn for three to four seconds; the police record is incorrect also for suggesting he rode onto the road at the intersection of Flemington Street because he pulled onto Nudgee Road before he reached Flemington Street. Senior constable Walters corroborated that the plaintiff
- On 13 August 2015, six days after the collision, the plaintiff signed a Queensland Compulsory Third Party Insurance Notice of Accident Claim Form. It contained a diagram. The plaintiff’s advocate drew the diagram. The diagram contains a line drawn to show the path of the plaintiff’s pushbike. That path is from the footpath on the left hand side of Nudgee Road northbound onto Flemington Road at the intersection of Flemington and Nudgee Road, travelling then in a north-easterly direction across Flemington Road in the direction of a bicycle land on the left hand side of Nudgee Road on the northern side of the intersection.
- The same form contained a handwritten response to questions “Who caused the accident?” and “What happened”. The two responses were each consistent with the impression from the diagram that the plaintiff cycled from the footpath at the intersection:
“Who caused the accident and why?
I moved from footpath to bike lane... driver blew horn so he saw me. He hit me on the bike lane.
Describe what happened.
As I moved from footpath to bike lane heading north on Nudgee Road, the other driver blew his horn and hit me – I hit windscreen and landed on the road.”
- The plaintiff’s evidence at trial of where he entered the road, from the footpath 80 metres from the T-junction, was inconsistent with what was recorded by police after the collision and inconsistent with the diagram created six days after the collision. The plaintiff accepts that his Notice of Accident Claim Form was incorrect for suggesting that there was a bicycle lane on the northern side of the intersection of Flemington and Nudgee Roads and for the sketch which suggested he entered the T-junction from the footpath of Nudgee Road on the south western corner of the T-junction. The plaintiff did not draw the sketch. His solicitor did. The plaintiff gave evidence that the sketch did not accurately show his course of travel.
- Ms Tabian gave evidence that:
She was driving behind the defendant’s car on Nudgee Road with her daughter as passenger. They had been to the markets. She was maintaining “a good car distance” behind the defendant. She and the defendant were each driving at a normal speed which would have been 60 km/h. The defendant’s vehicle was in the middle of the lane. She was behind. Suddenly the defendant severely swerved to his right slightly into the lane for oncoming traffic travelling south on Nudgee Road. The defendant then pulled over. She saw damage to the passenger side of the defendant’s vehicle and to his windscreen. She did not see the bicycle before the collision. She did not recall the sound of a car horn.
- The defendant gave evidence that:
He had finished work at Portside as a cook shortly before the accident. He had not been drinking. He was driving on Nudgee Road northbound. He had his speed limited to 60 km/h by cruise control. He was in the right hand of two northbound lanes in Nudgee Road. He saw the bicycle ahead about one metre out from the gutter in the left hand of the two northbound lanes of Nudgee Road. The plaintiff would have been at about the end of a bicycle lane when the defendant first noticed him. (It is a point which the plaintiff had estimated to be about 80 metres from the T-junction). Before drivers proceeding northbound on Nudgee Road reach the T-junction with Flemington Street there is a school. Associated with the school is a crossing for pedestrians and there are traffic lights at that crossing. There were no traffic lights for the T-junction of Flemington Street and Nudgee Road. The T-junction is just past the pedestrian crossing. After the plaintiff cycled across the pedestrian crossing approaching the T- junction the plaintiff veered to his right and in front of the defendant, without looking over his shoulder and without warning. The cyclist was at the southern corner of the T- junction about 2 metres to the left of the defendant’s line of travel when the plaintiff veered in front of the defendant. The defendant did not sound his horn. The defendant was still in the right hand of the northbound lanes. The defendant braked as fast as he could and swerved to the right crossing the centreline into the southbound lanes and stopped his car. He saw the plaintiff stand up and stumble over to the side of the road. The defendant then parked his car in the empty bus stop on the left hand side of the northbound lanes of Nudgee Road on the northern side of the T-junction. There was no bus there and there and there were no parked cars in that lane. There were no obstructions in the way of the plaintiff’s original line of travel northbound.
- The defence and amended defence each contain, at subparagraphs 3(b) (ii) and (iii), allegations to the effect that the plaintiff came from the footpath immediately prior to the collision. That is consistent with the plaintiff’s solicitor’s sketch in the Queensland Compulsory Third Party Insurance Notice of Accident Claim Form. But the allegations in the amended defence at subparagraphs 3(b) (ii) and (iii) are inconsistent with the plaintiff’s evidence and with the defendant’s evidence. The defendant was not in court during the plaintiff’s testimony. When the defendant gave evidence, it corroborated the plaintiff’s evidence that the plaintiff was riding northbound in Nudgee Road at the very same point the plaintiff asserted he entered the roadway (80 metres from the T-junction by the plaintiff’s estimate). It corroborated that the plaintiff was riding about a metre from the left hand gutter where the defendant first observed him and as the plaintiff approached the T-intersection with Flemington Road. The first defendant gave a statement to that effect on 22 October 2015 and repeated it in his evidence. The source of the inconsistent information in the defendants’ pleading was not the subject of evidence. I infer that the inconsistent defence was drawn by counsel for the defendant on the false assumption that the sketch in the plaintiff’s Queensland Compulsory Third Party Insurance Notice of Accident Claim Form correctly represented the plaintiff’s instructions in July 2015 and that the defendants’ counsel preferred to plead that the plaintiff entered the intersection from the footpath on the basis of the sketch because that version of events was even more favourable to the defendants than the first defendant’s own statement of evidence.
- The plaintiff’s solicitor did not cross-examine the defendant on the basis of the inconsistency between his evidence and his pleading or allege that the defendant had changed his version over time. I draw no inference adverse to the defendant from the fact that his evidence is inconsistent with the amended defence where it alleged that the plaintiff rode from the footpath into the intersection.
- The plaintiff’s solicitor did not submit that the plaintiff was in the left hand lane at impact and did not suggest to the defendant that impact was in the left hand northbound lane. There was no challenge to the defendant’s evidence that the defendant was in the right hand of the northbound lanes when the plaintiff veered to the right and in front of the defendant. There was no challenge to the defendant’s evidence that the defendant braked as fast as he could and veered to his right.
- Senior Constable Walters gave evidence that:
On 7 August 2015 he investigated a road traffic accident at the corner of Nudgee Road and Flemington Street, Hendra and spoke with the plaintiff who was in the back of an ambulance being treated. He made notes in his notebook of the conversation and transcribed them into the traffic accident report form; the plaintiff’s version given to him was that the plaintiff was riding on the footpath; the plaintiff had just left home and was travelling to Tom’s Confectionary Warehouse; he came to the intersection of Nudgee Road and Flemington Street and decided to go on to the road; the next thing he was hit by a car and was knocked off his bicycle onto the bonnet of the car; he hit his leg, hip and head on the windscreen and fell on to the side of the road hitting his head; he said he was a bit out of it and was trying to get his bearings and the driver of the car approached him and called an ambulance; he had been drinking earlier in the night.
Did the defendant sound his car horn and startle the plaintiff?
- There is only one substantial difference between the evidence of the plaintiff and of the defendant on the issue of liability. It is not whether the plaintiff changed direction by veering to his right from a metre away from the left hand gutter. It is whether the defendant sounded his horn and for 3 to 4 seconds, thereby causing the plaintiff to veer to his right.
- Credibility is relevant to the resolution of that issue. The plaintiff’s credibility is somewhat suspect because of his understatement of income in FYE 2015, his overstatement of physiotherapy expenses and his claim in FYE 2015 against Centrelink while working for undeclared income.
- The plaintiff’s evidence was that:
“I veered right when I heard a horn, and that’s when I’ve turned around like this … and that’s when I was hit.
So you did veer right?‑‑‑Well, I must have when I’ve turned to see what was coming behind me from that horn tooting. I’ve turned around, and, obviously – well, like, “Oh, sorry, mate.” I can’t turn around without turning my body. I can’t see what’s behind me without turning my body. And if I’m turning my body, if I’m operating a vehicle, it’s going to turn at the same time as me.”
- The plaintiff’s evidence was that he told the police about being startled by a car horn. Significantly, the senior constable did not note that the plaintiff claimed to have heard or been startled by a car horn. It was not suggested to the witness by the plaintiff’s solicitor in cross-examination that the plaintiff had referred to the sound of a car horn.
- The defendant denied sounding a horn as a toot, or for seconds or at all.
- Ms Tabian did not remember the sound of a horn. The plaintiff’s solicitor in address submitted that Ms Tabian did not hear the horn because her windows would have been closed and because she was behind the defendant’s car and sound travels in only one direction. I infer that one direction to have been northbound. Ms Tabian was not cross-examined about her evidence that she did not recall hearing a car horn. She did not say her windows were closed. I do not accept that she would have been unable to hear a horn sounded for 3 to 4 seconds. Her evidence is consistent with the defendant’s.
- There was no reason suggested for the defendant in the right hand of 2 northbound lanes to sound a horn for several seconds as he approached to overtake the plaintiff who was riding in the left hand lane.
- Mr Barlow’s evidence is consistent with the plaintiff’s but unhelpful. He did not look outside his shop when he heard a horn. The horn Mr Barlow heard may have been unrelated to the collision. He thought it was “close to 9 o’clock…about quarter to 9 or so”. The defendant called 000 at 8:37pm to ask for an ambulance for the plaintiff. The horn Mr Barlow heard may have been after the collision. It may have been a driver’s response to the aftermath of the collision or to the bicycle on the road. It may have been a response to other drivers slowing to pass the commotion near the scene of the collision.
- I am not satisfied that the defendant sounded his horn.
How did the collision occur?
- The evening of the collision was fine and dry. Nudgee Road, Flemington Street and the T-junction where they meet were sealed bitumen roads. The direction of travel of the plaintiff and the defendant was generally northbound on Nudgee Road, approaching the T-junction of Nudgee Road and Flemington Street. There were two northbound lanes in Nudgee Road approaching the T-junction and those two northbound lanes continued across the T-junction. On the northern side of the T-junction on Nudgee Road the northbound side remained wide enough for two lanes but a sign positioned on the northern side of the T-junction on the left hand footpath directed the northbound traffic to “Form 1 lane”. On the left hand side of Nudgee Road northbound and on the northern side of the T-junction was a bus stop delineated by a broken painted line on the bitumen. To the right of the bus stop was a single, particularly wide northbound lane on Nudgee Road. The two northbound lanes of Nudgee Road on the southern side of the T-junction were the same width as the one northbound lane of Nudgee Road on the northern side of the T-junction.
- I accept the evidence of the defendant and Ms Tabian that the defendant did not sound his horn. I accept the evidence of the plaintiff and the defendant that the plaintiff veered right before the collision. I accept the evidence of the defendant that he was in the right hand of the 2 northbound lanes about 2 metres to the left of the defendant’s line of travel when the plaintiff veered in front of the defendant. I accept the evidence of the plaintiff and the defendant that the plaintiff was about a metre from the left hand gutter of Nudgee Road before the plaintiff veered right. I accept the evidence of the defendant that he was in about the middle of his right hand lane before he took evasive action. The defendant braked as soon as he could and swerved to the right crossing the centreline into the southbound lane.
- The plaintiff veered right. I do not accept that it was because he was startled by the horn of the defendant’s car.
- The solicitor for the plaintiff argued that with respect to a bicycle, a car is “a juggernaut of death”. He put it thus:
“Car, bike, car, bike. How many cases have we read about the juggernauts of death, the ubiquitous juggernauts of death that cover our streets, driving into bicycles and killing people? That case law is littered with that term – juggernaut, juggernaut of death…If you’re driving a car, your Honour, you’re going to hit a bike, there’s going to be damage.”
- In terms of principle, I accept that all other things being equal, a driver of a car should ordinarily bear the lion’s share of the responsibility where the driver’s negligence results in injury to a cyclist whose negligence contributes to the collision, because the driver has a far greater capacity to cause damage than the cyclist, but the lion’s share will not be apportioned to the driver where the cyclist’s conduct is markedly more culpable.
- Such an approach applies only where the cyclist first establishes that the car driver was negligent. A car’s collision with a bicycle is not prima facie evidence of the car driver’s negligence.
- The solicitor for the plaintiff argued that the defendant, upon seeing the plaintiff on a bicycle in dark clothes and a cowboy hat, without lights or reflectors, should have anticipated that he could be drunk or could behave unreasonably and that the defendant should not have overtaken the bicycle. The solicitor for the plaintiff submitted:
“Now, they’re three factors which a reasonably prudent driver would compute as meaning not all is well; I need to take extra caution. And I’m driving up behind this chap at 60 kilometres an hour; he’s over there. And I’m just saying, “Well, what would I do?” Well, I’ve got to tell you, I wouldn’t be rushing to overtake him. I’d almost get to the point where I’d pull my car over and let him go three kilometres into the distance.”
- He further submitted that the “Form 1 Lane” sign and the bus stop area on the northern side of the T-junction required the plaintiff as a matter of law or good sense to veer right, and required the defendant to give way as a matter of law or to show reasonable care to the plaintiff.
- There was no physical obstacle in the T-junction or on the northern side of it or in the designated bus stop which required either party to change course. There was no reason to suppose the defendant’s vehicle would not have safely passed on the plaintiff’s right before the two had crossed the T-junction. There was no reason either vehicle needed to change direction in the T-junction. The plaintiff did not veer right because of the road sign, the bus stop or an obstacle.
- I reject the submissions for the plaintiff that the defendant should not have overtaken, or the implied submission that the defendant’s conduct was unreasonable.
- The plaintiff unreasonably rode into the path of the defendant’s car without keeping a proper lookout.
- I am not satisfied that the collision occurred as a result of negligence on the defendant’s part.
- In case there is a successful appeal against the judgment it is appropriate that I assess whether the plaintiff was “intoxicated” so that apportionment of liability can be more easily considered. For the reasons which follow, I also find that the plaintiff was “intoxicated” within the meaning of that word in the Civil Liability Act 2003 (Qld) (CLA).
- The plaintiff gave evidence that his beers contain 1.1 standard drinks. The recollections of Ms Jones are different from the recollections of the plaintiff.
- The plaintiff said that he started drinking when the children arrived home at about 3.30 to 4.00pm on the day of the accident and that he stopped at about 6.30pm; that his habit was to start drinking after the children came home and that Ms Jones would look after the children’s homework after giving them an hour off; that he had an addictive personality and because of that he would limit himself to 6 stubbies.
- Inconsistently with that evidence, on 31 August 2015, the plaintiff signed a Notice of Accident Claim Form which included the information that he had consumed seven beers from 3.00pm to 8.15pm. The plaintiff’s recollection at trial, of having finished drinking at 6.30pm, is very different from his recollection about three weeks after the accident of having finished drinking at 8.15pm. The plaintiff’s recollection in August 2015 is more likely to be correct than his recollection in 2017. The plaintiff told senior constable Walters at the scene that he had been drinking. I am not persuaded that the plaintiff finished drinking alcohol any earlier than 8.15pm on the day of the accident or that he had any less than 7 drinks.
- An ambulance officer attended shortly after the accident. Mr Cameron had been a paramedic since 2015. He remembers the plaintiff to have been slurring his words and smelling of alcohol. He was asked to consider whether there were any signs of injury to the plaintiff which might account for his slurring. He saw none. He remembers the plaintiff to have been standing upright with no sign of any medical issue other than slurring. The reason that Mr Cameron and his partner transported the plaintiff to hospital was as a precaution. The plaintiff discharged himself from the hospital at 3.00am because he wanted to return home to his children.
- The CLA provides in Chapter 2 at Division 2 of Part 4 section 47 for a presumption of contributory negligence if the person who suffers harm is intoxicated. The section, in the context of the headings for Division 2 of Part 4 of Chapter 2 provides:
“47 Presumption of contributory negligence if person who suffers harm is intoxicated
(1) This section applies 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 is alleged by the defendant.
(2) Contributory negligence will, subject to this section, be presumed.
(3) The person may only rebut the presumption by establishing on the balance of probabilities—
(a) that the intoxication did not contribute to the breach of duty;
(b) that the intoxication was not self-induced.
(4) Unless the person rebuts the presumption of contributory negligence, the court must assess damages on the basis that the damages to which the person would be entitled in the absence of contributory negligence are to be reduced, on account of contributory negligence, by 25% or a greater percentage decided by the court to be appropriate in the circumstances of the case.”
- The Court of Appeal, without referring to subsection 47 (3) has observed:
“If the plaintiff was “intoxicated” (as that term is defined in the Civil Liability Act 2003 (Qld)) and failed to establish that his intoxication was not self-induced or did not contribute to the accident, the starting point for the reduction of his damages on account of contributory negligence is a minimum of 25 per cent.”
- Whether the plaintiff was intoxicated is a question of fact. Intoxicated does not mean an extreme often described as “drunk” nor does it mean having a particular concentration of alcohol in the blood.
- Neither side made any submissions on the issue. The Dictionary in Schedule 2 of the Act provides:
“Intoxicated, in relation to a person, means that the person is under the influence of alcohol or a drug to the extent that the person’s capacity to exercise proper care and skill is impaired.”
- Despite pleading that the plaintiff was intoxicated, the defendants did not expressly submit that I should find that he was intoxicated. The central point of defendants’ submission on liability was not to consider the plaintiff’s contribution to his own injury but to urge a finding that the plaintiff failed to prove that the defendant breached his duty of care to the plaintiff. For reasons above, I accept that submission.
- The evidence of the alcohol consumed in about 5 hours does not, of itself, lead inevitably to a conclusion of intoxication. Nor does the smell of alcohol on the plaintiff’s breath nor his slurred speech to a paramedic. The combination of those matters together with the lack of any acceptable explanation for the plaintiff’s veering to his right from his lane into the defendant’s lane lead me to conclude that the plaintiff’s capacity to exercise proper care and skill was impaired and the reason it was impaired was the alcohol the plaintiff had consumed. It follows that he was intoxicated within the meaning of the CLA.
- Subsection 47 (3) seems to suggest that an injured person may rebut the presumption that his or her intoxication was contributory negligence by establishing that the intoxication did not contribute to the breach of duty giving rise to the plaintiff’s claim for damages. The plaintiff made no submission on the issue.
- In case there is a successful appeal against the judgment it is appropriate that I assess quantum.
- The plaintiff was treated by ambulance officers at the scene. He initially refused treatment and transport to hospital. He agreed to both after speaking to Ms Jones. He had a Glasgow Coma score of 15 throughout. He was noted to have abrasions only. He had no cervical spine tenderness, no obvious fractures or abnormality and denied pain. He was compliant with questioning although refused most QAS interventions. He refused a collar.
- At the Royal Brisbane Hospital, he was seen in the emergency department on the evening of the accident. A CT scan of his head, neck, chest, abdomen and pelvis did not disclose any injuries. The clinical note reads as follows:
Advised should be admitted o/n for observation
Advised of risks – appears competent and understands risks
Advised will d/c against medical advice
Advised to return if concerned/problems.”
- The plaintiff discharged himself the following morning.
- On 13 August 2015, the plaintiff saw Dr Haque at the Toombul Medical Centre. The following clinical note is recorded:
“A car hit from behind while push biking on Friday 7/8/15 at 8.45pm, an ambulance came ant (sic) took to hospital, RBH stayed for about 4 hours. X rays – NAD
Multiple bruises in both hands, rt.forearm, rt.maxilla, forehead, top of head, right flank, knees
Medns – nil
Coming with CTP insurance form.”
- The plaintiff was seen again at the Toombul Medical Centre on the following day (14 August 2015) by Dr Haque. The day before he had seen his solicitor who had drawn the problematic sketch of the bicycle’s path in exhibit 25. This is the first occasion that the plaintiff is recorded as complaining of back pain. The medical centre note simply reads:
Coming with a CL form – filled up.
Reason for contact:
Actions: Mobic tablet 15mg ceased
Prescription added: Brufen tablet 400mg 1 t.i.d.c.c. prescriptions printed:
Brufen tablet 400mg 1 t.i.d.c.c.
- The plaintiff was seen at the Toombul Family Clinic on 2 September 2015 by Dr Tuitoga. He referred the plaintiff to the neurosurgical out patients department at the Royal Brisbane and Women’s Hospital. His referral letter reads:
“Thank you for seeing Daniel, age 29 years with ? LA vertebrae fracture. On the 7th August 2015 he was hit by a vehicle riding his push bike. He continues to have low back pain radiating to his right hip. He has difficulty bending over, sitting/standing for long periods and the pain is relieved with resting. I am attaching his recent x ray results. Kindly refer him for further opinion and management.
Tramal capsule 50mg 1 q.i.d.c.c.”
- An x-ray report of Dr Michael Crouch of the plaintiff’s lumbo sacral spine and pelvis conducted on 1 September 2015 stated there was a cortical disruption of the anterosuperior corner of L4 and that the appearances were likely to be indicative of a limbus vertebrae (a normal variant) rather than a fracture at the site. Otherwise there were no abnormalities shown on the x-ray.
- On or about 30 October 2015, the plaintiff was seen by Dr Pillay, Consultant Neurosurgeon at the Royal Brisbane Hospital. In his letter to Dr Tuitoga, he stated inter alia:
I note that Mr McConnell was involved in a road traffic accident on his push bike in August 2015 and then complained of lower back pain. He says he had lower back pain for the past 2 months and there has also been hip and buttock pain for the past month. The pain is worse with movement. To date he has not had any physiotherapy. His medication includes Tramal and Neuroflex. He is not working at the moment.
On examination had been some pain behaviour. On examination lower limbs, leg length is equal and his normal power reflexes in the lower limb. Pin prick sensation is equal bilaterally.
On examination of the back there is sacroiliac joint tenderness.
I note the concern over the L4 vertebral body on the x-ray and the subsequent CT scan which is suggestive of a fracture. I have requested an MRI scan of the lumbar spine with the STIR sequence to exclude acute fracture. The radiologist confirmed with me that there is no obvious acute fracture of the L4 vertebral body. What we are seeing is a normal variant of development of the anterior superior part of the L4 vertebral body. As a result of the developmental changes, there are also disc changes at the L3/4 level. There is no evidence of nerve root compression in the spinal canal.
Therefore my suggestions for management would be as follows:
- Please refer to your local physiotherapist.
- I would also suggest Versatis patches for the sacroiliac joint pain.
- If he does have relief from the Versatis patches and requires any further treatment, then he can be referred to your local pain specialist for sacroiliac joint injections.
- There is no evidence that the plaintiff had any treatment since his attendance at the RBH on 30 October 2015.
- The plaintiff gave evidence of taking 12 to 18 Panadeine Forte per week prescribed by Dr Joseph Tuitoga. There is no other evidence of the plaintiff continuing to see Dr Tuitoga, or of his being prescribed Panadeine Forte. The only evidence of the plaintiff seeing Dr Tuitoga in relation to his accident-related injuries is a letter of referral from Dr Tuitoga to the Neurosurgical Outpatients Department of the Royal Brisbane and Womens Hospital dated 2 September 2015. I am not satisfied that the plaintiff currently takes Panadeine Forte.
- On 26 February 2016, the plaintiff was examined by Dr Scott Campbell, Neurosurgeon. The plaintiff told Dr Campbell that treatment had been with Mersyndol Forte, Nurofen, Lyrica, Palexia and chiropractic manipulation. He told Dr Campbell that he continued to have lower back pain and stiffness which occurred daily and was moderate to severe in nature with radiation across to both hips. He noted altered sensation of both legs. The lower back pain was aggravated by sudden movements, heavy lifting/bending, prolonged sitting/standing, driving long distances, pushing a lawnmower, trimming the yard and carrying shopping bags.
- The plaintiff told Dr Campbell that his current medications were then Codeine, Palexia and Lyrica for lower back pain as required.
- Dr Campbell’s examination revealed decreased flexion by 50% and extension by 75%. There was asymmetry of movement. There was central tenderness and guarding. The lower limb power, reflexes and sensation were normal.
- Dr Campbell was of the view that the slight disruption at L4 most likely represented a normal variant rather than an acute fracture.
- Dr Campbell considered that the plaintiff’s prognosis with regard to finding employment in the future was guarded to poor due to difficulties with lifting, bending, sitting, standing and driving. He noted the plaintiff’s poor limited education to grade six and his history of unskilled labouring jobs. His prospects of finding employment in the future with a chronic lower back complaint and limited education were poor. He considered it likely the plaintiff would go on a pension. Dr Campbell assessed the plaintiff with an 8% whole person impairment. He rated him at the top of the available range due to the severity of symptoms and effect of the symptoms on his activities of daily living. He considered the impairment is likely to be permanent.
- Dr Campbell conceded in cross-examination that his assessment of the plaintiff which was conducted approximately six months after the accident was a little early and that the AMA V guides recommended 12 months. He conceded also that if upon examination in October 2016 the plaintiff exhibited a normal range of movement that would indicate an improvement in symptoms. That creates difficulty for the plaintiff because there was an examination 7 months later when the plaintiff exhibited a normal range of movement of the lumbar spine.
- The plaintiff was assessed by Dr Ian Dickinson, Orthopaedic Surgeon on 5 October 2016. Dr Dickinson was told by the plaintiff that he had tried physiotherapy but this hurt his back more. He had tried various forms of medication including Palexia and Panadeine Forte. He told Dr Dickinson that he had an addictive personality and had been addicted to drugs and was wary of taking much in the way of analgesia.
- Dr Dickinson, consistent with the assessment of Dr Pillay in October 2015, found significant pain behaviour on the part of the plaintiff when he examined him approximately one year later. He found that the plaintiff’s complaints of burning in his feet and pain in his left groin had no relationship to the subject accident. This is not inconsistent with the evidence of Dr Campbell on the point. Dr Dickinson found that the plaintiff, on examination, had a normal range of movement of his lumbar spine with no asymmetry of motion. Dr Dickinson assessed the plaintiff as having a DRE Category 1 impairment, with a 0% impairment. He also considered that the plaintiff’s occupational pursuits will not be affected by his injury. Dr Dickinson was of the opinion that the plaintiff had many inconsistent signs on examination which he outlined in further detail in his memorandum. He was of the opinion that the symptoms described by the plaintiff on examination and some anomalies of movement, were not related to injuries sustained in the collision.
Findings on the injuries
- The collision forces were sufficient to cause a soft tissue injury to the lumbar spine. The plaintiff suffered multiple bruising in the accident as noted by Dr Haque on 13 August 2015. There is no objective radiological evidence or otherwise to prove the plaintiff has suffered a lower back condition from the accident. I accept the plaintiff suffered a lower back injury in the subject collision, but accept that the opinion of Dr Dickinson, based upon observations made in October 2016 was correct. By that date the plaintiff’s impairment related to the collision had improved to 0% impairment.
Assessment of damages
- Damages in this case must be assessed according to the CLA.
- The plaintiff does not submit for past economic loss or past costs of medications or treatment.
- I reject his claim for future economic loss based upon my acceptance of the opinion of Dr Dickinson. Based on Dr Dickinson’s assessment, the plaintiff has suffered no impairment and no interference with his earning capacity.
- The defendants contend for an ISV of 2 the following award of damages:
94 Minor thoracic or lumbar spine injury
A soft tissue injury of the thoracic or lumbar spine with no—
Comment about appropriate level of ISV
AnISV at or near the bottom of therangewillbeappropriateif theinjurywillresolvewithout anyongoingsymptomswithin months after the injury is caused.
0 to 4
- I asses an ISV of 4 because: the plaintiff’s condition after six and a half months was an 8% whole person impairment; Dr Campbell then rated him at the top of the available range due to the severity of symptoms and effect of the symptoms on his activities of daily living; the plaintiff was and remained reluctant to take medication due to his addictive personality; his symptoms probably settled gradually over the next seven months until he saw Dr Dickinson. ISV of 4 equates to a general damages award of $5,760.00.
- I assess damages at $5,760.
- The parties are at liberty to make submissions as to costs within 7 days if they cannot reach agreement as to a consent order.
 Amended Defence of the defendants par 3 (c).
 Exhibit 23.
 Exhibit 24.
 Exhibit 25.
 Exhibit 25.
 Exhibit 27.
 Shown in Exhibit 5.
 Shown in Exhibit 7.
 See e.g. Allianz Australia Insurance Ltd v Swainson  QCA 136 at  although that was a case involving collision between a vehicle and a pedestrian.
 Exhibit 25.
 Allianz Australia Insurance Ltd v Swainson  QCA 136 at .
 At 23:55 hours.
 Exhibit 18.
 Exhibit 19.
 Exhibit 19.
 Exhibit 17.
 Exhibit 18.
 Exhibit 19.
- Published Case Name:
McConnell v Cosgrove & Anor
- Shortened Case Name:
McConnell v Cosgrove
 QDC 139
Andrews SC DCJ
30 May 2017